Mediation Procedure

MEDIATION PROCEDURE

This Mediation Procedure is taken directly from the Commercial Arbitration Act. It contains the standard provisions found in most, if not all, Mediation Agreements used in this Province. For all mediations, I will prepare a standard form Mediation Agreement for the parties adopting this procedure, with such modifications as may be agreed to by the parties. Please contact me for more information.

Appointment of Mediator

1 The appointed mediator shall sign a statement verifying that the mediator has no interest in the case nor is the mediator aware of any circumstances that could raise the likelihood of a claim of bias.

Time and Place of Mediation

2 Unless otherwise agreed, the mediation shall commence no later than four days after the appointment of the mediator at a place determined by the mediator.

Pre-conference Preparation

3 Each party shall prepare a brief summary, not to exceed three pages, of the issues in dispute with the party’s position with respect to those issues.

4 The summaries shall be delivered to the mediator at least two days before the first mediation conference.

Process

5 At the mediation conference, each party should be prepared to make a brief oral statement explaining the party’s position.

6 Each party is expected to participate in structured negotiations with the active assistance of the mediator.

7 Each party should bring any documents the party needs in order to effectively negotiate.

8 The documents referred to above will be used by the mediator to understand the position of the party but may be kept confidential on request and, where confidentiality is requested, the documents shall not be revealed to the other party.

9 The mediator may caucus privately with any party during the mediation conference if the mediator considers that it will assist the process.

10 Any party may request a private caucus with the mediator at any time.

11 Each party shall co-operate in good faith with the mediator.

12 Each party shall make every effort to attend a scheduled conference and shall co-operate to avoid any unnecessary delays.

Necessary Parties

13 All parties necessary to the reaching of a final settlement should be present at the mediation conference.

14 The goal of the mediation is to reach an agreed upon settlement and, therefore, all individuals with the appropriate authority to agree to the settlement terms and conditions should be present at the mediation conference.

Presentation

15 Although oral evidence, other than that of the parties to the dispute, is not encouraged at a mediation conference, the mediator may allow persons other than parties to make presentations.

Representation

16 A party may be represented at a mediation conference by counsel or another representative and, where so represented, may request the opportunity to meet privately with counsel or that representative at any time during the mediation conference.

Resort to Other Proceedings

17 Unless it is necessary for a party to initiate or continue arbitral or judicial proceedings to preserve the party’s rights, no party shall initiate or continue any arbitral or judicial proceeding in respect of any of the matters in the dispute that is the subject-matter of the mediation, during the mediation process.

Record

18 No transcript shall be kept of the mediation conference.

Confidentiality

19 The mediator, the parties and their counsel or representatives shall keep confidential all matters relating to the mediation, except where disclosure of a settlement agreement is necessary to implement or enforce that agreement.

Adjournment

20 The mediator may adjourn or cancel a mediation conference at any time.

Withdrawal

21 Either party may withdraw from the mediation at any time.

Settlement Agreement

22 When the parties reach a settlement, the parties shall reduce the agreement to writing.

23 Where the parties are unrepresented, the mediator may suggest the parties seek independent legal advice before a settlement agreement is signed.

“Without Prejudice” Proceeding

24 In all respects, the mediation conference is deemed to be a “without prejudice” proceeding.

 

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