Index

January 5 , 2022

Proving a Settlement After a Mediation


November 16, 2021

Types of Injunctions


October 1, 2021

Orders After Litigation is Over


August 11, 2021

Discoverability for Limitation Periods


August 5 , 2021

Releases of Claims


June 7 , 2021

Language Used Still Matters


May 17 , 2021

Serving Uncooperative People


April 15 , 2021

Death and After-Life of Contingency Agreements


February 22 , 2021

Legal Analysis


February 2 , 2021

Costs Clarified at Last


January 4 , 2021

Urgent!


December 10, 2020

Traps and Confusion in Service Times


November 24, 2020

Don't Cut Corners


October 2 , 2020

Consent Orders


August 4 , 2020

Electronic Hearings


July 21, 2020

Ceasing to Act


June 29, 2020

Writing Skills


June 29, 2020

Keeping Up With the Law


June 22, 2020

Assets as a Test for Security for Costs


June 19, 2020

What is This Case About?


June 11, 2020

Cross-Examining Child Witnesses


May 20 , 2020

Formal Offers


May 13 , 2020

Vexatious or Self-Represented Litigants


January 7, 2020

G.S.T. and Costs


December 20 , 2019

Electronically Navigating the
Handbook


October 7 , 2019

Questioning is a Bad Word


July 29 , 2019

Dismissal for Delay


May 7 , 2019

Rule 4.31 Fallacies


March 18 , 2019

More Dangers in Oral Fee Agreements


February 11 , 2019

Weir-Jones Decisions


January 9 , 2019

Discouraging Settlements


November 30, 2018

European Court Helps You Twice?


November 23 , 2018

Courts Overruling Tribunals


November 16 , 2018

New Evidence on Appeal


October 30 , 2018

Schedule C's Role


July 17 , 2018

Loopholes in Enforcing Settlements


May 7 , 2018

Enforcement of Procedure Rules


April 16, 2018

Limping Lawsuits are Often
Doomed


April 3 , 2018

Court of Appeal Tips for
Summary Decisions


March 19, 2018

Serious Dangers in Chambers
Applications


February 13 , 2018

Court Backlog


December 18 , 2017

Lowering the Status of Courts


September 15 , 2017

Access to Court Decisions


July 4 , 2017

Strictissimi Juris


June 14 , 2017

Why Don't Your Clients Settle?


June 5 , 2017

Gap in Rules About Parties


June 5, 2017

Personal Costs Against
Solicitors


April 26, 2017

Clogged Courts


April 11, 2017

Dismissal for Want of
Prosecution


January 6, 2017

Incomplete Disclosure


December 15, 2016

Mediation


November 23, 2016

Is Contract Interpretation Law?

 

Welcome

Côté’s Commentaries

© 2016-2022 J.E. Côté

PROVING A SETTLEMENT AFTER A MEDIATION

Usually parties who have settled their lawsuit have ways to prove that there was a settlement and what were its terms. They often have something in writing. If one of them has a lawyer, that sort of record is even more likely. And if the agreement is made at a mediation settlement, the mediator will urge them to create such a record, and may try to eliminate misunderstandings or ambiguities.

The contents of any discussions or exchange of information in an attempt to compromise or reach a settlement are usually privileged. They cannot be put into evidence without the consent of all parties. However, there is an exception. If a binding contract was reached, the fact of it and its terms can be put into evidence to prove or to enforce the agreement. In 2014, the Supreme Court confirmed that, in a commercial mediation case.

A recent Supreme Court appeal from Québec examined whether that exception to the privilege applies to a Québec family law mediation. A majority of the Supreme Court held that it does. Three judges dissented (none of them from Québec).

The majority say that if no settlement is reached, preserving absolute confidentiality of communications is essential. It is needed to encourage frank discussions. But if a settlement is reached (at the end or after), the parties need tools to enforce the agreement. After all, the primary objective of any mediation is to reach an agreement to end or prevent a dispute. Any mediation can also preserve relationships. Québec has legislated a culture shift away from the primacy of trials to equal importance of settlements. Mediation offers better access, speed, simplicity, and economy. Mediation is chosen by the parties and gives helps to settle.

The difference is that Québec does not let lawyers attend the mediation. But consulting lawyers is encouraged. In Québec the parties can (if they wish) make a proposed agreement which is not a binding contract. And in Québec, even a binding agreement in a family case is not enforceable until a court reviews it to see if it is appropriate on certain topics of “public order” such as children and child support.

The usual exception to privilege to prove a settlement applies, says the majority. Even in Québec, an agreement after mediation can be proved by evidence. The evidence is limited to what is needed to prove existence or scope of the settlement. That exception to privilege is needed, because like the privilege itself, the exception promotes settlements, by making them enforceable. (If they wish, parties can make a clear contract barring that exception to the privilege, but that was not clearly done here.)

The dissenters said that rules about settlement negotiations in civil or commercial cases do not apply to the family law context, whether as to settlements or as to mediation, especially as it applies to a summary written by the mediator. They emphasized that some people are vulnerable, and so settlement agreements in family law matters may not be binding contracts, for that and other reasons.

So in Alberta, the ordinary without-prejudice general privilege continues. (No Supreme Court Justice questions that.) The exception to privilege to prove or enforce a settlement also applies, even in a family case after mediation. (Whether the general law of contracts or family law outside Québec will in future be modified by the vulnerability doctrine remains to be seen.)

See Assoc. de médiation familiale du Québec v. Bouvier 2021 SCC 54.

– Hon. J.E. Côté

 

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.