Can a Divorce Mediator be Compelled to Produce Case Notes & Files?

What happens when a judge requests a mediator's files? Is what happens in family mediation really confidential and private?

By Marian Grande Updated: January 25, 2022Categories: Divorce Process, Legal Issues

There are many benefits to family mediation: avoiding the costly and lengthy process involved in litigation and confidentiality are two of the biggest. Contrary to litigation, mediation is not of public record. Clients feel safe in mediation knowing the details are kept private – especially with sensitive family law matters.

What Happens When a Judge Requests a Divorce Mediator’s Files?

Mediation and Confidentiality

The only exceptions are where a child needs protection, a person’s safety is at risk, or otherwise per the law.

The confidentiality of mediation is directly correlated to its effectiveness. When the parties feel emotionally, legally, and physically safe, they open up, leading to a successful mediation.

A divorce mediator’s files include intake notes, discussions held in intake meetings, notes from mediation sessions, and forms completed by the parties such as intake forms and financial statements.

Confidentiality is a safety net that allows parties to make concessions and encourage openness amongst those at the table without the fear of these discussions becoming public knowledge or making their way before a Court if the talks do not result in a settlement.

The Mediation Screening/Intake Process

Screening is a mandatory first step in the mediation process. The intake or screening process is extremely confidential. Currently, there is are no cases where the court has compelled a divorce mediator to release their screening notes. Things family law clients say during screening may be extremely sensitive in nature. Such is the case in domestic abuse cases, which may jeopardize the safety of a party and/or children if released.

Court Case: Benson v Kitt

Enter Benson v Kitt, 2018 ONSC 7552, wherein the husband attempts to compel production of the mediation file (including intake forms and the mediator’s notes including screening notes).

Justice P.J. Monahan ultimately refused to order the documents requested by the husband and further stressed that the concept of settlement privilege, which arises in common law, protects confidential communications between spouses when trying to settle a dispute.

The concept behind this policy is to give each party the confidence to understand and comprehend they can speak willingly and without fear of legal consequences during a closed or private mediation.

The fact that the mediator had the forethought to have both parties sign a mediation agreement containing a confidentiality clause was extremely important. This made it quite clear that the mediation process was private, and any disclosure of the mediation file would be inadmissible in a court or arbitration.

The clients both recognized that the intake forms and screening process are confidential between the divorce mediator and that client.

The Judge stated, “In my view, the words ‘to the extent permitted by law’ suggest precisely the opposite, namely that disclosure obtained during the mediation shall be inadmissible unless there is some positive legal requirement for disclosure.”

None was identified, and so the Judge ruled against the husband.

Confidentiality Reduces the Risk of Private Facts Becoming Public

Confidentiality in divorce mediation lessens the risk of any critical facts or emotional statements during the proceedings becoming public. This control allows more room for a naturalistic dialogue and eradicates any advantage for either side.