A recent case confirms the importance of confidentiality in settlements, including those achieved in mediation, whether or not the mediation contract contains a confidentiality clause.
In Benson v. Kitt, the judge found that confidentiality was covered by the common law principle of settlement privilege.
Adam Black, a partner in our Family Law Group said that believes Justice Monahan's decision supports the objective of mediation as an alternative dispute resolution process that can result in a settlement satisfactory to both parties.
A settlement in mediation can meet the objective of addressing everyone's interest, he says.
"The process of mediation requires full and candid discussions between the parties without fear of those discussions finding their way outside out of the four corners of mediation," he says. "And without the protection, the settlement privilege, that attaches to mediation, the fear is that these candid discussions won't happen. And I think those candid discussions are a necessarily ingredient to a successful mediation."