Settlement Privilege: Exceptions and Considerations in Family Law

Confidentiality of communications and information exchanged for the purpose of settling a dispute is protected by settlement privilege.

As discussed throughout case law and textbooks, settlement privilege is fundamental in promoting honest and frank discussion between parties. Parties do not have to worry that the content of their discussions will be used against them later – they are shielded from prejudice or risk of subsequent admissions or settlement offers advanced in this process. This is particularly comforting to parties involved in the family law process who are involved in mediation in the hopes of reaching an agreement before having to commence or continue with the adversarial litigation process, as the privilege applies automatically and applies to all communications leading up to a potential settlement, even after the mediation has concluded.

Yet, like many things, settlement privilege also has its exceptions. The issue of settlement privilege in the context of family law mediation was addressed by the Supreme Court of Canada in Association de mediation familiale du Québec v. Bouvier, 2021 SCC 54 (“Bouvier”). While a family law case, the Supreme Court of Canada highlights the importance of settlement privilege and the exceptions to it that also apply in civil and commercial cases.