Open and Closed mediation defined
1. Closed Mediation
Family Mediation is a process used to help clients negotiate issues. Most clients want their negotiations to be confidential, meaning that, in a legal sense, whatever is said and whatever offers are made cannot later be used against them in court or arbitration proceedings if negotiations fail. Almost all family mediation in Ontario is carried out in this manner, and is called Closed mediation.
Nothing said or done during the process can be brought to the court, nor can the mediator be summonsed to court to talk about the process or what happened. Documents that are provided (other than settlement offers) which are relevant to the legal process are not confidential. Also, the fact that the mediation process is closed does not mean that the clients are not permitted to tell their lawyers, counselors, friends etc what happened. It is only the process (court or arbitration) that cannot be talked about.
2. Open Mediation
Very occasionally, mediators are asked to do Open mediation. Many mediators refuse to conduct open mediation. The distinction between open and closed mediation relates to disclosure to the legal process during mediation. There are no clear guidelines as to what can or cannot be disclosed about the mediation process if open mediation is chosen.
In some places, open mediation means no more than the mediator reporting to the court whether there was a settlement or not, but no more (e.g. in many of the Family Court mediation services). In other places mediators may report much more about the process and its results. It is absolutely essential for anyone choosing open mediation services to have a contract specifying what can and what cannot be disclosed about the legal process during mediation. Always clarify at the very first contact with the mediator whether you are looking for open or closed mediation.