Confidentiality in Mediation — and Why Posting on Social Media Can Backfire
In a recent decision reported in Canadian Lawyer Magazine, a company and one of its directors were fined $1,000 by the Federal Court of Canada after posting videos on social media about a court-ordered mediation conference. (Canadian Lawyer) The ruling explicitly flags that mediation is not simply another “team meeting” but a process built on the premise of confidentiality and candour.
This case serves as a strong reminder for counsel, parties and corporate executives that the confidentiality protections applicable to mediation are real — and publicly broadcasting information about the process risks serious consequences. It also underscores why firms like Nationwide ADR emphasise confidentiality as a foundational value.
The Facts in Brief
In Planet Fitness Inc. v. Planet Fitness Franchising LLC (PFIP, LLC), 2025 FC 1713, the dispute concerned registered trademarks and a passing-off claim. (Canadian Lawyer) While the mediation had been ordered by the court, one of the defendants’ corporate officers posted videos online about the mediation session, thereby breaching the confidentiality of the mediation. The court found the posting to constitute contempt and ultimately imposed a fine of $1,000, noting that no clear precedents existed for sanctions of that nature. (Canadian Lawyer)
The takeaway: if participants treat mediation as though it were informal or unguarded, the protective framework can be compromised — and liability risk arises even beyond the litigation itself.
Why Confidentiality Matters in Mediation
At its core, mediation invites parties to speak openly, explore options, test settlement ideas — all without fear that what they say will be aired in court or used against them. The trust-based nature of the process requires that participants believe the communications are protected.
The UMA encapsulates this purpose. The Act defines a “mediation communication” and, under Section 5 (or similar numbering depending on the version), treats it as both confidential and privileged — meaning it is not subject to discovery or admissible in evidence in a proceeding, barring certain exceptions. (uniformlaws.org) For example:
(a) A mediation communication is confidential and, if privileged, is not subject to discovery or admissible in evidence in a proceeding.
(b) In a proceeding, the following privileges apply:
(1) A party may refuse to disclose … a mediation communication.
(2) A mediator may refuse to disclose … a mediation communication.
(3) A non-party participant may refuse to disclose … a mediation communication.
The protective framework therefore addresses more than just “what was said in the room” — it shields the communications made in the context of mediation, and offers the mechanism by which participants can assert the privilege.
Social Media — A New Frontier of Risk
In the digital age, it is tempting — especially for corporate leaders or in the context of high-profile disputes — to capture mediation photos or post commentary on social platforms. Yet the Planet Fitness decision serves as a caution: broadcasting mediation content may breach the very confidentiality that underpins the process.
Key risks include:
Undermining the expectation of confidentiality, which may chill open discussions, thereby reducing the value of mediation as a dispute-resolution tool.
Exposing participants (and counsel) to sanctions or adverse court findings — as occurred in this Canadian case.
Compromising settlement negotiations by revealing strategic positions or sensitive disclosures that would otherwise remain protected.
Weakening the mediator’s ability to manage the process effectively, as the trust-based environment is damaged.
For ADR practitioners and counsel, this means ensuring that all participants — including corporate officers, directors, in-house counsel and external advisors — understand the boundaries of what may (and may not) be shared publicly.
Practical Steps for Counsel and Parties
To guard against inadvertent breaches of confidentiality in mediation, consider the following steps:
Clear agreement at the outset – Include explicit confidentiality provisions in the mediation agreement or engagement letter, setting out what is protected, what may be shared and under what conditions.
Orientation or “pre-mediation” briefing – The mediator or counsel should reiterate confidentiality obligations to all participants (including non-party participants such as advisors) before the session begins.
Social-media policy – Parties should adopt a clear policy: no posting of mediation communications (videos, photos, commentary) without express, written consent of all participants.
Post-mediation safeguards – After the mediation, if settlement is reached or even if it is not, parties should review how the process may (or may not) be referenced externally, including in disclosures or public filings.
Instructor-style reminders – Given the high-stakes nature of many disputes (business, tort, employment), counsel should remind their clients: mediation offers an opportunity for candour and creativity — but only if the confidentiality promise is honored in letter and spirit.
Role of Nationwide ADR
At Nationwide ADR our tagline — Unlocking Solutions for Demanding Cases — reflects not only our focus on complex business, tort and employment disputes, but also our commitment to creating the right environment for resolution. Confidentiality is foundational to that environment. Our neutrals (many of whom hold credentials such as FCIArb, IMI Certified Mediator and CPR Panel membership) ensure that from intake to conclusion, the mediation process is structured, secure and trusted.
In disputes where early resolution is critical — whether via mediation, early-neutral evaluation or special-master appointment — counsel and parties should view confidentiality not as an optional “nice-to-have,” but as a core feature of the process. Breaching that confidentiality — even via modern mechanisms like social media or corporate communications — can undermine the process, weaken outcomes and expose participants to risk.
Conclusion
The recent Canadian-Federal-Court sanction serves as a timely reminder: confidentiality in mediation is not window-dressing. It is a legal, ethical and process-driven protection — and when it is breached, the consequences may follow. The UMA’s provisions reflect the commitment of ADR frameworks to protect what is said and exchanged in mediation from misuse or exposure.
For counsel, corporate clients and ADR professionals alike: ensure that the confidentiality agreement is clear, remind all participants of the boundaries (especially in the era of social media) and treat the mediation space as a confidential zone. Doing so preserves the integrity of the process and enhances the likelihood of meaningful, durable resolution.
If your organization is preparing for a high-stakes dispute and considering mediation (or any other ADR service), Nationwide ADR stands ready to help navigate the process, safeguard confidentiality and deliver resolution-driven outcomes.