Mediation can be either closed or open mediation which means as follows:
Closed Mediation (Confidential)
Family Mediation is a process used to help clients negotiate issues. Most clients want their negotiations to be confidential, meaning that, in a legal sense, whatever is said and whatever offers to settle or resolve issues that are made, cannot later be used against them in court or arbitration proceedings if negotiations fail. Almost all family mediation in Ontario is carried out in this manner, which is called Closed Mediation.
Nothing said or done during the process can be admitted in Court as evidence, nor can the mediator be summonsed to Court to talk about the process or what happened during the mediation sessions. Documents that are provided (other than settlement offers) which are relevant to the legal process and are not necessarily confidential. Also, the fact that the mediation process is closed does not mean that the clients are not permitted to tell their lawyers, counsellors, professional advisors and sometimes, friends etc about the fact that they attended mediation. It is only the process (court or arbitration) that cannot be talked about. Parties are free to consult with their professional advisors at any time during the mediation process.
Open Mediation (Partly Confidential)
Very occasionally, mediators are asked to do Open Mediation. Many mediators refuse to conduct open mediation. The distinction between open and closed mediation relates essentially to disclosure of documents relating to the mediation and of discussions and agreements reached during the conduct of the mediations to the legal process (i.e. Court and others). There are no clear guidelines as to what can or cannot be disclosed about the mediation process if Open Mediation is chosen.
In some places, Open Mediation means no more than the mediator reporting to the Court whether there was a settlement or not, but no more (e.g. in many of the Family Court mediation services). In other places, mediators may report much more about the process and its results/settlements reached etc...
It is absolutely essential for anyone choosing open mediation services to have a written contract specifying what can and what cannot be disclosed about the legal process during mediation. Always clarify at the first meeting with the mediator whether you are looking for open or closed mediation.
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