The question of whether a mediation agreement protecting confidentiality also protected improper conduct by a lawyer during a mediation has been dealt with by the Law Society of Ontario. The lawyer was found guilty of professional misconduct for conduct in violation of the  Rules of Professional Conduct –  failing to be courteous, civil and act in good faith during a mediation. The lawyer relied on Paragraph 5 on the “Agreement to Mediate” which stated:

“The entire procedure will be confidential.  All conduct, statements, promises, offers, views and opinions, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, representatives or other invitees to the mediation and by the mediator, who is the parties’ joint agent for purposes of these compromise negotiations, are confidential and shall, in addition and where appropriate, be deemed to be attorney client privileged.  Such conduct, statements, promises, offers views and opinions shall not be discoverable or admissible for any purposes, including impeachment, in any litigation or other proceeding involving the parties and shall not be disclosed to anyone not an agent, employee, expert, witness, or representative for any of the parties. However, evidence otherwise discoverable or admissible in a later proceeding is not excluded from discovery or admission as a result of its use in the mediation.  If not entirely enforceable, the parties intend that the court enforce this provision to the extent enforceable by such court.”

The Law Society’s position was that the “Agreement to Mediate” was for the litigant’s protection so that discussions and documents are not used in the future to the detriment of the parties, and that the Rules of Professional Conduct are mandatory with no exceptions. Therefore, participation in mediation does not absolve a lawyer from conducting himself/herself in a professional manner. For more on this case please see Law Society of Upper Canada v. Ernest Guiste, 2011 ONLSHP 24 (CanLII).

Thank you for reading.

James Jacuta