Can a mediator be called to give evidence at a legal proceeding regarding communications with parties to mediation?
British Columbia, Canada
The following excerpt is from A.H. v. J.T.H., 2005 BCSC 185 (CanLII):
Sinclair v. Roy, supra, makes it clear that a mediator may not be called to give evidence at legal proceedings regarding communications with parties to a mediation conducted in furtherance of settling current litigation, in circumstances where no settlement has been reached and no privilege has been waived.
In Rudd v. Trossacs, supra, Lederman J. made an order requiring a mediator to give evidence about a specific issue related to a motion for rectification of a settlement agreement. The issue was whether one of the defendants was a party to the settlement agreement. All of the defendants were named on the title page of the minutes of settlement but one defendant’s name was omitted from the signature page.
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