What is Open & Closed Mediation?
Participants can choose to conduct Family Mediation in an Open or Closed format.
The participants preserve the confidentiality of their mediation.
Mediation is a process that guides two or more parties in resolving disputes while working towards developing an agreement on how to resolve these issues. Most clients want their negotiations to be kept 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.
The participants waive the confidentiality of their mediation.
Very occasionally, mediators are asked to conduct an 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. Because of this lack of clarity, many mediators will not conduct open mediations.
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.