(First published in Conflict Conversations blog)

A recent Supreme Court of Canada decision, Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, has been widely reported in the ‘blogosphere’. For a selection of these blog posts, see here, here, here, and here (in French). The decision deals with the interaction between a general confidentiality clause in a standard mediation agreement and settlement privilege, as well as an exception to the privilege, in law.

These two excerpts from the head note to this reported case encapsulate the crux of the ruling:

 […] a communication that has led to a settlement will cease to be privileged if disclosing it is necessary in order to prove the existence or the scope of the settlement. Both the common law privilege and this exception to it form part of the civil law of Quebec, which applies in this case.

 And:

 […] Absent an express provision to the contrary, it is unreasonable to assume that parties who have agreed to mediation for the purpose of reaching a settlement would renounce their right to prove the terms of the settlement.

 Some considerations from mediation theory

Perhaps the one element in mediation that all of the various theoretical approaches to it can agree on is the centrality of self-determination. The significance of self-determination to mediation is well documented in the mediation literature and by its incorporation into the codes of conduct of many professional mediation bodies and associations. Self-determination is the procedural value par excellence in mediation; it is not the substantive outcome of settlement that chiefly characterizes mediation as helpful to parties in conflict. Rather, it is the offer of an opportunity to disputants to decide on the terms of a settlement without recourse to an external authority, except where the parties are unable to agree. Self-determination is what distinguishes mediation from other dispute processes. To the extent self-determination is vitiated, mediation starts to lose its distinctive nature as an alternative to other, more formal conflict resolution processes. If it becomes just like other adjudicative processes, the question then is, why bother with it?

From the standpoint of mediation theory and not contractual law, self-determination means that the mediation process is not terminated until the parties decide it’s terminated. Pending formalization in legal documents or ratification by a court, parties are free to change their minds, to have second thoughts, to have contradictory interpretations of the scope of an ‘agreement’. Seen in the light of mediation theory, exceptions to settlement privilege for the purpose of proving the existence or the scope of a concluded agreement beg the question. For self-determination to be supported, it is a question best left to the mediation parties and not the courts.

 One last point of interest

In this post referred to above, Maître Jean H. Gagnon questions what effect the newly adopted Code of Civil Procedure of Quebec, which will come into force in the autumn of 2015, will have on this ruling. The point is that the existing Code incorporates the exceptions to the common law settlement privilege while the new Code does not.

 Notons en terminant que le nouveau Code de procédure civile du Québec (qui doit entrer en vigueur à l’automne 2015) comporte quelques articles (dont, surtout, ses articles 4, 5 et 606) encadrant la confidentialité d’une médiation, lesquels ne font pas état des exceptions reconnues au privilège de droit commun relatif à la confidentialité des communications faites dans le but de régler un différend. Une fois ce nouveau Code de procédure civile du Québec entré en vigueur, qu’adviendra-t-il de ces exceptions en droit québécois ?

 [Let us note in concluding that Quebec’s new Code of Civil Procedure (which is to come into force in autumn 2015) consists of several sections (above all, sections 4, 5, and 606) setting out the framework for mediation confidentiality, none of which make reference to the recognized exceptions to the common law settlement privilege. Once this new Code of Civil Procedure comes into force, what will be the effect on these exceptions in Quebec law?] (unauthorized translation)