A comparative analysis of Canadian and American law relating to the preservation of the confidentiality of settlement and mediation discussions

Canadian mediation programs and legislation are rapidly evolving and without consistency. Without a uniform approach to the confidentiality of settlement discussions that occur in mediation, a danger arises that the integrity of the mediation process will be undermined in an effort to admit evidence in subsequent proceedings.; This thesis focuses on ensuring that settlement and mediation negotiations remain confidential to the greatest extent possible. It provides a comparative analysis of Canadian and American law relating to the preservation of the confidentiality of settlement and mediation negotiations. It concludes with a recommendation that Canadian federal and provincial jurisdictions adopt a Uniform Mediation Law to establish bifurcated confidentiality immunity for mediators. The author reviews mediation process developments from several Canadian jurisdictions. She includes case summaries and legislative examples that illustrate the attempt to balance the participants' need for confidentiality in the mediation process with the public's need for information and the litigant's need for relevant evidence in the trial process.; This thesis includes a comparative analysis of American and Canadian case law and approaches to the common law "without prejudice" rule and its impact on the discoverability or admissibility of evidence arising from negotiations; the impact of the "parole evidence" rule on the admissibility of evidence and the enforcement of settlement agreements; the doctrine of privilege and Wigmore's four conditions; and the doctrine of immunity, in light of their impact on preserving the confidentiality of discussions.; This thesis examines the Agreement to Mediate in light of its enforceability. It considers how attempts to enforce a settlement agreement impact the confidentiality of settlement discussions that arise in negotiations that occur directly between counsel or in mediation.; The thesis examines leading American and Canadian cases relating to the discoverability or admissibility of evidence arising out of negotiations or mediation. It looks at the Canadian use of the rules of court and the design of court-annexed mediation programs to promote settlement in light of statutory protections to ensure the confidentiality of the mediation process. Lastly, it includes recommendations to enhance the use of mediation and the preservation of the confidentiality of mediated discussions in Canada.