Current best practice in the negotiation of separation agreements is to not mandate future mediation-arbitration of any disputes.  The recent trial decision of Justice Finlayson in C.S. v. D.A.S. 2020 ONCJ 16 (CanLII) illustrates the perils of boilerplate mediation-arbitration language in separation agreements. 

The parties’ separation agreement required them to go straight to private arbitration in the event of a future dispute. Such a clause is not as common; usually the parties are mandated to first try mediation. 

When the parties were unable to agree on a proposed change to their Separation Agreement, the mother attempted to initiate the arbitration clause, which efforts were frustrated by the father. The father, who was self-represented, eventually participated in mediation, which failed, and the parties agreed to pursue resolution in court rather than arbitration.

The moral of the story: counsel should carefully assess whether parties are likely to be good candidates for private dispute resolution before committing them to that process in separation agreements. The costs and stress of attempting to enforce a process that one party is resisting can outweigh any benefits of private adjudication. The courts are an effective process where there are likely to be compliance challenges with what should be a voluntary process. 


Court-connected family mediators sometimes find that, notwithstanding an Agreement to  Mediate that provides for closed, confidential mediation, parties or counsel will include information about the mediation, including Mediation Summary Reports, in court documents. (For a related issue, the attempt by a party to compel disclosure of a mediator’s file including screening notes in a confidential mediation, see Benson v  Kitt, 2018 ONSC 7552 (CanLII) 

A recent decision by Justice Sossin of the Superior Court of Justice struck certain content from a Statement of Claim in a civil action on the grounds that it violated the principle of mediation confidentiality. 

Quoting from a 2005 decision of Master MacLeod, (“Generally speaking, the courts should be reluctant to allow mediation and the conduct of mediation to become itself an issue in litigation”), Justice Sossin wrote:

“Therefore, while the fact that mediation was offered or contemplated may form part of the pleadings, the fact of any particular mediation, or its content, should not form part of the pleadings.”

He therefore stuck out allegations relating to the role and comments made by a mediator as the pleading could “neither be substantiated nor challenged without evidence that likely would be inadmissible.”

Hilary Linton is a Toronto family lawyer, mediator, arbitrator, Dispute Resolution Officer and trainer.

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