MEDIATION
PROCEDURE
MODEL MEDIATION
PROCEDURE
Mediation Procedure
- The Parties to the Dispute or negotiation in question will
attempt settlement by mediation. The Parties or their Representatives [and their Advisors]
and the Mediator[s] will attend [a] Mediation meetings[s]. All communications relating to,
and at, the Mediation will be without prejudice.
- The Representatives should have the necessary authority to
settle the Dispute. The procedure at the Mediation will be determined by the Mediator,
after consultation with the Representatives.
Mediation Agreement
- The Parties, the Mediator and The Canadian Foundation for
Dispute Resolution ("the Foundation") will enter into an agreement
("Mediation Agreement") based on the Foundation’s Model Mediation Agreement
("the Model Agreement") for conduct of the Mediation. The definitions in the
Model Agreement are adopted and used in the Mediation Procedure.
Code of Conduct
- The Foundation has adopted as its Code of Conduct for
Mediators ("Code of Conduct") the Model Standards of Conduct for Mediators
approved by the American Arbitration Association, the Litigation Section and Dispute
Resolution Section of the American Bar Association, and the Society of Professionals in
Dispute Resolution, as amended from time to time.
The Mediator
- The Mediator will abide by the terms of the Model Procedure,
the Mediation Agreement and the Foundation’s Code of Conduct and will be responsible
for:
- attending any meetings with any or all of the Parties and
their Representatives preceding the Mediation, if requested or if the Mediator decides
this is appropriate;
- assisting the Parties in drawing up the Mediation Agreement;
- organizing a suitable venue and dates;
- organizing exchange of the Summaries and Documents;
- reading before the Mediation each Summary and all the
Documents sent to him/her in accordance with paragraph 9;
- determining the procedure (see paragraph 2 above);
- assisting the Parties in drawing up any written principles
of settlement, if so requested;
- conducting general administration in relation to the
Mediation, as requested by the Parties.
- The Mediator [and any member of the Mediator’s firm or
company] will not act for any of the Parties individually in relation to the subject
matter of the Mediation in any capacity either during the currency of this Agreement or at
any time thereafter. The Parties accept that in relation to the Dispute the Foundation is
not an agent of, or acting in any capacity for, any of the Parties. The Parties and the
Mediator accept that the Mediator is acting as an independent contractor and not as agent
or employee of the Foundation.
The Foundation
- The
Foundation will, as necessary:
- assist the Parties in appointing the Mediator;
- meet with any or all of the Parties, the Representatives
(and the Mediator if he/she has been appointed) either together or separately, to discuss
any matters or concerns relating to the Mediation.
- If
a dispute is referred to the Foundation as a result of a mediation (or other ADR) clause
in a contract, and if the Parties cannot agree within a reasonable time from the date of
the notice initiating the Mediation ("the ADR notice") upon the appointment of
the Mediator, the Foundation will, at the request of any Party, appoint the Mediator.
Other Participants
- Each
Party will notify the other party[ies] of the names of those people (the Advisor[s],
witnesses, etc. in addition to the Representatives) that it intends will be present on its
behalf at the Mediation. Each Party, in signing the Mediation Agreement, will be deemed to
be agreeing on behalf of both itself and all such persons to be bound by the
confidentiality provisions of this Model Procedure.
Exchange of Information
- Each
Party will simultaneously exchange with the other and send to the Mediator at least two
weeks before the Mediation or such other date as may be agreed between the Parties:
- a concise summary ("the Summary") stating its case
in the Dispute and the relief requested;
- copies of all the documents to which it refers in the
Summary and to which it may want to refer in the Mediation ("the Documents").
- The
Parties will agree on the maximum number of pages of each Summary and of the Documents and
try to agree on a joint set of documents from their respective Documents.
Disclosure and Confidentiality
- Subject
to the exceptions in this paragraph 12, the Parties will make full disclosure to each
other and to the Mediator during the mediation of all information and documentation
relevant to the issues being mediated. A Party may wish to withhold certain information
and/or documentation in all of which cases the Party shall disclose the issue or issues to
which that information and/or documentation relates. The Party is not obliged to identify
the documentation withheld. A Party may wish to disclose information and/or documentation
to the Mediator in confidence and shall in any event disclose information and/or
documentation withheld from the other Party or Parties pursuant to this paragraph in which
case the Party shall clearly state in writing that the information or documentation is
confidential to the Mediator and not to be disclosed to the other Party or Parties to the
mediation. The Mediator shall hold the information and/or documentation so designated in
confidence.
- The Parties agree and understand that the mediation
discussions and any documents created for the mediation process are without prejudice and
for the purpose of reaching a mutually acceptable agreement.
- Neither the Mediator nor the Foundation (any employee,
consultant, officer or representative of the Foundation) will produce a report or testify
in Court with respect to what was said in mediation as the potential harm of doing so far
outweighs the possible benefits which could be derived therefrom. The Parties will not
call the Mediator or the Foundation as a witness in any legal or adjudicative proceeding
and will not subpoena any notes or records made by the Mediator or the Foundation in
relation to the mediation.
- The Parties acknowledge that no statutory privilege exists
for mediators and that the Mediator or the Foundation may be required by the Courts to
testify despite this Agreement to the contrary.
- Nothing in this Agreement shall prevent the discovery or
admissibility of any evidence that is otherwise discoverable or admissible, merely because
the evidence was presented in the course of mediation.
- So long as the Parties and specific issues in controversy
are not identified, the Mediator and the Foundation may disclose information and data
about the mediation for research or educational purposes.
- If a dispute arises between the Parties regarding a
settlement reached in mediation, the Mediator may disclose information and data necessary
to clarify the terms of the agreement reached in mediation.
The Mediation
- No formal record or transcript of the Mediation will be
made, unless otherwise agreed by the Parties.
- If the Parties are unable to reach a settlement in the
negotiations at the Mediation and only if all the Representatives so request and the
Mediator agrees, the Mediator will produce for the Parties a non-binding written
recommendation on terms of settlement. This will not attempt to anticipate what a court
might order but will set out what the Mediator suggests are appropriate settlement terms
in all of the circumstances.
Settlement Agreement
- Any
settlement reached in the Mediation will not be legally binding until it has been reduced
to writing and properly executed by, or on behalf of, the Parties.
Termination
- Any
of the Parties may withdraw from the Mediation at any time and shall immediately inform
the Mediator and the other Representatives in writing upon withdrawal. The Mediation will
terminate when:
- a breach of the Mediation Agreement occurs; or
- a Party withdraws from the Mediation; or
- written principles of settlement are concluded and
initialled by the Representatives; or
- in the opinion of the Mediator, it is in the best interests
of the Parties that the Mediation be terminated; or
- the Mediator decides he/she should retire for any of the
reasons in the Code of Conduct.
No Further Steps
- The
Parties undertake not to take any further steps in any legal proceedings regarding the
issues being mediated while the Mediation is in progress unless the same are required to
preserve rights.
Fees, Expenses and Costs
- The Foundation’s fees and reasonable expenses will be
borne equally by the Parties. Payment of these fees and expenses will be made to the
Foundation in accordance with its fee schedule and terms and conditions of business,
unless otherwise agreed.
- The Mediator’s fees and other reasonable expenses of
the Mediation will be borne equally by the Parties. Payment of these fees and expenses
will be made directly to the Mediator in accordance with the Mediator’s fee schedule
and terms and conditions of business.
- Each Party will bear its own costs and expenses of its
participation in the Mediation, unless otherwise agreed.
Waiver of Liability
- Neither
the Mediator nor the Foundation shall be liable to the Parties for any act or omission in
connection with the services provided by them in , or in relation to, the Mediation,
unless the act or omission is fraudulent or involves willful misconduct provided, however,
that in no event shall the Mediator or Foundation be jointly and severally liable.
This Model Mediation Procedure have been
produced by The Canadian Foundation for Dispute Resolution. Any feedback or concerns on
the content of this document please contact CFDR at the addresses below.
The Canadian Foundation for Dispute Resolution
234 Eglinton Avenue East, Toronto, Ontario M4P 1K5
Tel. (416) 487-4447 Fax. (416) 487-4429
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