As much as ADR is about avoiding court, it’s the courts that ultimately decide if they will hear your case – even though you and/or your opponent opted to avoid court.
So, here are new (for 2021) and noteworthy decisions about making mediation public, avoiding arbitration, settlements that went sideways, and why settlement offers must stay off - not on - the record.
What happens at mediation stays at mediation
In Stronach v. Stronach 2021 ONSC 5758 a judge in this high-profile Succession-style squabble granted a motion to strike out parts of an amended statement of defence on the grounds they plead matters subject to settlement privilege. The matters in question related to documents and communications from a judicial mediation.
The court did not accept that the two exceptions to settlement privilege (and sometimes known as “mediation privilege”) raised by the responding party, Belinda Stronach, applied here: Waiver, and justice of the case. The decision turns on its unique facts and is worth a read.
However, there are at least two other exceptions to settlement privilege at mediation not raised in the Stronach decision (i) for the purposes of enforcement of a settlement (unless the parties clearly contracted out of the exception in the mediation agreement), and (ii) for the purposes of LSO disciplinary proceedings since counsel can’t simply say or write whatever they wish in a mediation context and assume that they are exempt from the Rules of Professional Conduct.