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Model Mediation Procedure
(as now administered by the ADR Institute of Canada, Inc.)
Table of Contents
Mediation Procedure
Mediation Agreement
Code of Conduct
The Mediator
The Foundation
Other participants
Exchange of Information
Disclosure and Confidentiality
The Mediation
Settlement agreement
Termination
No further steps
Fees,expenses and costs
Waiver of liability
Guidance Notes
Introduction
Mediation Procedure - paragraphs 1 & 2
Mediation Agreement - paragraph 3
Code of Conduct - paragraph 4
The Mediator - paragraphs 5&6
The Foundation - paragraphs 7 & 8
Exchange of information - paragraphs 10 & 11
Disclosure and Confidentiality - paragraphs 12 to 18
The Mediation - paragraphs 19 & 20
Settlement Agreement - paragraph 21
No further steps - paragraph 23
Fees, expenses and costs - paragraphs 24, 25 & 26
Waiver of Liability - paragraph 27
International disputes - Language and governing law/jurisdication
Language
Governing Law and Jurisdiction
Model Mediation Agreement
Model Mediation Procedure
(as now administered by the ADR Institute of Canada, Inc.)
1. 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.
2. 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.
3. 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.
4. 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.
5. 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:
6. 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.
7. The Foundation will, as necessary:
8. 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.
9. 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.
10. 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:
11. 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
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. No formal record or transcript of the Mediation will be made, unless otherwise agreed by the Parties.
20. 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.
21. 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.
22. 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:
23. 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.
24. 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.
25. 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.
26. Each Party will bear its own costs and expenses of its participation in the Mediation, unless otherwise agreed.
27. 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.
The paragraph numbers and headings in these notes refer to the paragraphs and headings in the Model Procedure.
Text in the Model Procedure in square brackets may be inappropriate and therefore inapplicable in some cases.
The essence of mediation (and many other ADR procedures) is that:
The procedure for the mediation is flexible and this model procedure can be adapted to suit the parties.
A mediation can be used:
Rules or rigid procedures in the context of a consensual and adaptable process which is the essence of ADR are generally inappropriate. The Model Procedure and the Model Agreement and these guidance notes should be sufficient to enable parties to conduct a mediation.
In some cases the agreement to conduct a mediation will be as a result of an "ADR clause" (such as one of the Foundation's Model ADR clauses) to that effect in an underlying commercial agreement between the Parties. Where that is the case the Model Procedure and Mediation Agreement may need to be adapted accordingly.
The Model Agreement, which has been kept as short and simple as possible, incorporates the Model Procedure (see paragraph 3). The Mediation Agreement can include amendments to the Model Procedure; the amendments can be set out in the body of the Mediation Agreement or the Mediation Agreement can state that amendments made in manuscript (or otherwise) to the Model Procedure and initialled by the Parties are to be incorporated into the Mediation Agreement.
Mediation Procedure - paragraphs 1 & 2
The Advisors can and usually do attend the Mediation. Although a lead role in the Mediation is often taken by the Representatives, the Advisors can play an important role in the exchange of information, in advising their clients on the legal implications of principles of settlement and in drawing up a settlement agreement. However, the commercial interests of the Parties will normally take the negotiations beyond strict legal issues, hence the importance of the role of the Representatives.
It is essential that the Representatives are sufficiently senior and have the authority of their respective Parties to settle the Dispute.
Mediation Agreement - paragraph 3
If the Foundation is asked to do so by a party wishing to initiate a mediation, it will approach the other party(ies) to a dispute to seek to persuade it/them to participate.
Ideally the Representatives, the Advisors (and the Mediator if he/she has been identified) and the Foundation (or whatever other ADR body is involved, if any) should meet to discuss and finalize the terms of the Mediation Agreement.
Alternatively, the party who has taken the initiative in proposing the Mediation may wish to send a draft agreement based on the Foundation's Model Mediation Agreement to the other party(ies).
The Foundation has adopted as its Code of Conduct for Mediators 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 Code of Conduct covers such points as the Mediator's duty of confidentiality, impartiality and avoiding conflicts of interest.
The Mediator - paragraphs 5 & 6
The success of the Mediation will to a large extent, depend on the skill of the Mediator. The Foundation believes it is very important for the Mediator to have had specific training and experience as a Mediator. The Foundation has its own panel of experienced mediators and can assist the Parties in identifying a suitable mediator.
Questions sometimes arise about whether it is more important to have a Mediator with good mediation skills or a Mediator with good background in or knowledge of the industry where the problem or dispute has arisen. Both would of course be optimal. However, where it is not possible, current research is suggesting that the Parties are best served by a mediator with good mediation skills.
In some cases it may be useful to have more than one Mediator, or to have an independent expert who can advise the Mediator on technical issues ("the Mediator's Advisor"). All should sign the Mediation Agreement which should be amended as appropriate.
It is possible a student mediator ("the Student Mediator") may attend the mediations. The Student Mediator signs the Mediation Agreement and falls within the definition "the Mediator" in the Model Procedure and the Mediation Agreement.
It is advisable, but not essential, to involve the Mediator in any preliminary meeting between the Parties.
The Foundation - paragraphs 7 & 8
The Model Procedure envisages the involvement of the Foundation because this may benefit the Parties. Its involvement, however, is not essential and this Model Procedure can be amended if the Foundation is not to be involved.
Exchange of information - paragraphs 10 & 11
Documentation which a Party wants the Mediator to keep confidential from the other Party(ies) (e.g. a counsel's opinion, an expert report not yet exchanged) must be clearly marked as such. It can be disclosed by the Party before or during the Mediation. It will not be disclosed by the Mediator without the express consent of the Party.
One of the advantages of ADR is that it can avoid the excessive discovery process (including witness statements) which often make litigation and arbitration more complex. The Documents should be kept to the minimum necessary to give the Mediator a good grasp of the issues. The Summaries should be similarly brief.
Disclosure and Confidentiality - paragraphs 12 to 18
The Model Procedure provides, subject to exceptions provided, for full disclosure by the Parties to each other and the Mediator during the Mediation, of all information and documents relevant to the issues being mediated. Where full disclosure is not made, the Party not making full disclosure is required to disclose the issue or issues to which the information and/or documentation not being disclosed relates and is obliged to make disclosure, upon terms of confidentiality of that information and/or documentation to the Mediator. The Mediator is not to disclose to any other Party any information given to him/her by a Party in confidence without the express consent of that Party.
In any related litigation in Canada such documents (see paragraph 12) should in any event be inadmissible and privileged as "without prejudice" documents since they will have been produced in relation to negotiations to settle the dispute. Documents which pre-existed the Mediation and would in any event have been discoverable will, however, not become privileged by reason of having been referred to in the Mediation and will therefore still be discoverable. The position may differ in other jurisdictions and should be checked.
Mediation discussions are without prejudice. Although the Parties agree not to call the Mediator or the Foundation as a witness in any legal or adjudicative proceedings and will not subpoena notes or records, they recognize that the possibility exists that the Courts may require the Mediator or the Foundation to testify.
The Model Procedure permits limited disclosure of information for research or educational purposes, and further permits the Mediator to disclose information and data necessary to clarify terms of the agreement reached in mediation.
The Mediation - paragraphs 19 & 20
The intention of paragraph 20 is that the Mediator will cease to play an entirely facilitative role only if the negotiations in the Mediation are deadlocked. Giving a settlement recommendation may be perceived by a Party as undermining the Mediator's neutrality thereby jeopardizing the process, and for this reason the Mediator may not agree to this course of action. Any recommendation will be without prejudice and will not be binding.
Settlement agreement - paragraph 21
If no agreement is reached, it is nonetheless open to the Parties to adjourn the Mediation to another time and place. Experience shows that even where no agreement is reached during mediation itself, the Parties will often reach a settlement shortly after, as a result of the progress made during that mediation.
No further steps - paragraph 23
The only permitted further steps in any legal proceedings are those required to preserve rights.
Fees, expenses and costs - paragraphs 24, 25 & 26
The usual arrangement is for the Parties to share equally the fees and expenses of the Foundation and the Mediator relating to the procedure, but other arrangements are possible. A party to a dispute which is reluctant to participate in a mediation may be persuaded to participate if the other party(ies) agree to bear that party's share of the mediation fees.
Waiver of liability - paragraph 27
The Model Procedure provides for limited liability of the Mediator and the Foundation and specifies no joint and several liability.
International disputes - Language and governing law/jurisdiction
The Model Agreement is designed for domestic disputes but can be easily adapted for international disputes by the addition of the following paragraphs:
"The language of the Mediation will be ... Any Party producing documents or participating in the Mediation in any other language will pay for, or if agreed to, provide the necessary translations and interpretation facilities."
Governing Law and Jurisdiction "The Mediation Agreement shall be governed by, construed and take effect in accordance with [Canadian] law."
"The courts of [Canada] shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of or in connection with the Mediation."
Where the law is not Canadian or the jurisdiction not Canada the Mediation Agreement may need to be amended to ensure the structure, rights and obligations necessary for a mediation are applicable.
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| (jointly "the Parties") | Add full names and addresses | |
| [4:] | ("the Mediator") | |
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| [5: | ("the Student Mediator") | ("the Mediator's Advisor")] |
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(jointly and individually "the Mediator") The Canadian Foundation for Dispute Resolution, 12075, 237 Fourth Avenue S.W., Calgary, Alberta T2P 0H6 ("the Foundation")
Dispute ("the Dispute") Participation in a Mediation 1. The Parties will attempt to settle the Dispute by mediation ("the Mediation"). The provisions of the Foundation's Model Mediation Procedure ("the Model Procedure") (a copy of which is attached) as supplemented and/or varied by this agreement will apply to the Mediation and are incorporated in, and form part of, this agreement. The definitions in the Model Procedure are used in this agreement. The Mediator |
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| 2. The Mediator[s] will be | [The Student Mediator will be ] | |
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The Representatives 3. The Representatives for the Parties at the Mediation will be |
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(jointly "the Representatives")
A Party will immediately notify the other Party[ies] and the Mediator of any change to the above. Other participants 4. The following, in addition to the Representatives, will be present on behalf of the Parties at the Mediation |
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A Party will immediately notify the other Party(ies) and the Mediator of any change to the above.
Place and time 5. The Mediation will take place |
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Confidentiality 6. Each Representative in signing this agreement is deemed to be agreeing to the confidentiality provisions of the Model Procedure (paragraphs 16 & 17) on behalf of the Party he/she represents and all other persons present on behalf of that Party at the Mediation. Litigation/arbitration 7. No litigation or arbitration in relation to the Dispute is to be commenced [Any existing litigation or arbitration in relation to the Dispute is to be stayed] from the date of this agreement until the termination of the Mediation. This paragraph is only necessary if there is to be a restriction on litigation/arbitration - see paragraph 15 of Model Procedure. Model Procedure amendments 8. Set out amendments (if any) to the Model Procedure - see introduction to Model Procedure guidance notes. Law and jurisdiction 9. For wording see Model Procedure guidance notes. This paragraph only necessary if the Dispute involves parties from different jurisdictions. |
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Signed: |
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Signed: |
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| [the Mediator] [ [the Student Mediator] [the Mediator's Advisor] | ||
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Signed: |
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| on behalf of the Foundation | ||
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CLICK HERE for a more printer friendly copy of this document.
print parameters: standard letter size (8.5 X 11 inch) portrait style with 1 inch margins in Times New Roman 12 pt.
