What are the rules around confidentiality especially when returning to the pre-settlement stage or for enforcement of the settlement?
Alternative dispute resolutions can and often do contain vast amounts of information and typically in mediation this is thought to be privileged – unavailable for use to advance one’s cause outside the mediation. In the recent decision of the Supreme Court of Canada – Union Carbide Canada Inc. v. Bombardier Inc. the confidentiality clause in the mediation agreement did not necessarily supplant settlement privileges (and its common law exceptions).
Perhaps the best place to ensure clarity about the availability of information revealed during an abortive or disputed mediation settlement is in the originating mediation agreement.
In an article by M. Killoran, QC & Elizabeth Coyle entitled Settlement Privilege – Clearly Contracting Out, the authors advance that council involved in the dispute should “address their minds to how settlement agreements reached can be relied upon by their clients in the event of a disagreement as to the meaning of the settlement terms.”