Model Mediation Procedure
By Robert M. Tessier
1. The parties ("the Parties") to the dispute ("the Dispute"), and the Centres for Excellence in Dispute Resolution ("Centres for Excellence") will enter into an agreement ("the Mediation Agreement") based on this Model Mediation Procedure for the conduct of the Mediation. This procedure ("the Model Procedure") will be incorporated into, form part of, and may be varied by, the Mediation Agreement.
2. The Centres for Excellence will, subject to the agreement of the Parties or any court order, convene and preside over the mediation. The Centres for Excellence, after consultation with the Parties where appropriate, will:
- Attend or host any meetings with any or all of the Parties preceding the mediation, if requested or if the Centres for Excellence determines this is appropriate and the Parties agree;
- Draw up the Mediation Agreement;
- Read before the Mediation all submissions and all the Documents provided by the Parties;
- Chair, and determine the procedure for, the Mediation;
- Facilitate the drawing up of any settlement agreement; and
- Abide by the terms of the Model Procedure and the Mediation Agreement.
3. The Centres for Excellence will not act for any of the Parties individually in connection with the Dispute. The Parties accept that the Centres for Excellence is acting as an independent contractor and not as an agent or employee of any party.
4. If there is any issue about the conduct of the Mediation upon which the Parties cannot agree within a reasonable time, the Centres for Excellence will, at the request of the Parties, decide the issue for the Parties, having consulted with them.
5. The Lead Negotiators must be sufficiently senior and have the full authority of their respective Parties to settle the Dispute, without having to refer to anybody else. If there is any restriction on that authority, this should be disclosed before the Mediation.
6. The mediation may be convened at any mutually agreed upon location, or as available by way of teleconference or other similar means provided all Parties have the capability of participating in such venue. Personal attendance is strongly encouraged by all decision makers.
Exchange of information
7. No submission of any particular type or form is required. The parties may choose to either:
- Submit no written summaries prior to commencement (a discouraged option);
- Submit only confidential briefs to the Mediator and any documents the party would like the Mediator to review before convening;
- Submit and exchange briefs concisely stating the positions of the party and summarizing the negotiations to date, and any documents the party would like the Mediator to review before convening (an encouraged option);
- Submit a joint statement of the issues and positions, and a joint set of documents (an encouraged option).
8. The Mediation will take place at the arranged place and time stated in the Mediation Agreement.
9. The Mediator will chair, and determine the procedure at, the Mediation.
10. No recording or transcript of the Mediation shall be made.
11. If the Parties are unable to reach a settlement in the negotiations at the Mediation, and only if all the Parties so request and the Mediator agrees, the Mediator will produce for the Parties a non-binding 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.
12. Any settlement reached in the Mediation will not be legally binding until it has been reduced to writing and signed by, or on behalf of, the Parties.
13. Any of the Parties may withdraw from the Mediation at any time and shall immediately inform the Mediator and the other representatives in writing. The Mediation will terminate when:
- A Party withdraws from the Mediation; or
- The Mediator, at his/her discretion, withdraws from the mediation; or
- A written settlement agreement is concluded.
The mediator may also adjourn the mediation in order to allow parties to consider specific proposals, get further information or for any other reason, which the mediator considers helpful in furthering the mediation process. The mediation will then reconvene with the agreement of the parties.
Stay of proceedings
14. Any litigation or arbitration in relation to the Dispute may be commenced or continued notwithstanding the Mediation unless the Parties agree otherwise or a court so orders.
16. All information (whether oral, in writing or otherwise) arising out of, or in connection with, the Mediation will be without prejudice, privileged and not admissible as evidence or disclosable in any current or subsequent litigation or other proceedings whatsoever. This does not apply to any information, which would in any event have been admissible or disclosable in any such proceedings.
18. The Mediator will not disclose to any other Party any information given to him by a Party in confidence without the express consent of that Party.
Paragraphs 16 -18 shall not apply if, and to the extent that:
- All Parties consent to the disclosure; or
- The Mediator is required under applicable law to make disclosure; or
- If in the opinion of the Mediator, the Mediator considers that there is a risk of harm to the life or safety of any person if the information in question is not disclosed;
- If in the opinion of the Mediator, the Mediator considers that there is a risk of his/her being subject to criminal proceedings unless the information in question is disclosed.
19. None of the Parties to the Mediation Agreement will call the mediator as a witness, consultant, arbitrator or expert in any litigation or other proceedings whatsoever arising from, or in connection with, the matters in issue in the Mediation. The Mediator will not voluntarily act in any such capacity without the written agreement of all the Parties.
Fees, expenses and costs
20. Mediator's fees and the other expenses of the Mediation will be borne equally by the Parties. Payment of these fees and expenses will be made to the Centres for Excellence in accordance with its fee schedule and terms and conditions of business.
21. Each Party will bear its own costs and expenses of its participation in the Mediation.
Exclusion of liability
22. Neither the Mediator nor the Centres for Excellence shall be liable to the Parties for any act or omission in connection with or arising out of any matter relating to or arising out of the Mediation including any and all preliminary discussions or post-mediation session follow-up.