Generally, all communications between parties at mediation and any settlement achieved are confidential. This secrecy is based on the common law principle of settlement privilege. There is good reason for this confidentiality as it encourages the parties to be open and frank in their discussions towards negotiating a settlement.

However, it should be noted that the secrecy of communications during mediation and of any settlement achieved is not absolute. Notably, settlement privilege can be overridden in order to prove the existence or the scope of a settlement agreement.

In 2014, the Supreme Court of Canada considered in the case of Union Carbide Canada Inc. v Bombardier Inc.[1] whether the exception to settlement privilege could be circumvented by an absolute confidentiality clause in a mediation contract. The SCC ultimately held that parties can contract for greater confidentiality than provided by settlement privilege, but that any such clause would have to explicitly note the parties intention to oust the common law. Therefore, a standard mediation confidentiality clause would likely be insufficient to meet the requirement set by the SCC.

[1] 2014 SCC 35