Mediation Agreement

A. AGREEMENT TO MEDIATE:

The Parties in (the Claim) at the Specific Claims Tribunal (Tribunal) have voluntarily agreed to proceed into mediation of the Claim (the Mediation). At the request of the Parties, has agreed to act as the mediator of the Claim (the Mediator).

B. NATURE OF MEDIATION:

Mediation is a voluntary, informal, flexible, and consensual process intended to assist the Parties in advancing their common interest in the resolution of the Claim. The Parties agree that they will consult with each other and the Mediator, before the Mediation begins, to ensure that the process for the Mediation respects cultural diversity.

C. PARTICIPATION IN MEDIATION:

Parties and their counsel will attend the Mediation. Participation by the Parties is encouraged. The Parties agree to negotiate in good faith and to disclose material facts, information, and documents to each other and to the Mediator.

D. SETTLEMENT OF ISSUES:

If one or more issues are settled through mediation, the Parties shall confirm the terms of the settlement in Minutes of Settlement (Minutes), which are to be signed by the Parties and witnessed. The Minutes shall be drafted by the Parties or their counsel. If the terms set out in the Minutes resolve all issues in the Claim they shall be incorporated within an Agreement in Principle (AIP) and the Minutes and AIP shall be filed with the Tribunal within ten days of signing. The Parties shall implement the settlement in accordance with the terms of the Minutes and AIP, which may require each Party to report on its progress at such intervals as are specified in the AIP.

E. AUTHORITIES:

Each Party will have present or have access to a person or persons with sufficient authority to approve and direct the execution of Minutes and an AIP, including terms on which all or any matters in issue will, subject to the completion of such internal processes as may be required by law or institutional policy, be incorporated in a binding Settlement Agreement. Each Party will inform the other, in writing, of their internal processes. The execution of an AIP will bind each Party to act in good faith and diligence in advancing such processes to completion.

F. MEDIATION BRIEF:

Each Party shall provide a Mediation Brief to the other Party and the Mediator at least 10 days prior to the Mediation. The Mediation Brief shall:

  1. state the names and roles of the participants in the Mediation;
  2. identify the factual and legal issues on which the Parties agree;
  3. identify the factual and legal issues that are the subject of the Mediation;
  4. identify the Parties’ positions and interests with respect to the issues that are the subject of the Mediation;
  5. describe any progress made to date in negotiations of the Claim; and,
  6. provide any documents that a Party considers of central importance to the Claim and that neither Party has filed at the Tribunal as part of this Claim.

G. PROCEDURE:

The Parties have agreed, in consultation with , that the Mediation will proceed as follows:

  1. The Mediator will have access to all evidence, pleadings and other material that the Parties have filed with the Tribunal as part of the Claim. This will include but is not confined to: The record before the Mediator will be as close as possible to the record that would be before a member of the Tribunal had the Claim proceeded to a final hearing.
  2. All participants must sign this Mediation Agreement. If, during the Mediation, a non-participant enters a room where a participant is located, that participant will immediately notify the Mediator and the Parties.
  3. Each Party will have an opportunity to express its views to the Mediator without the other Party present (Caucus or Caucusing). The Mediator may also request to Caucus with each Party separately to express his or her views on the strengths and weaknesses of each Party’s perspective. Caucusing will be limited to no more than two participants for each Party, their counsel and counsel to the Tribunal.
  4. The Mediator may provide his or her impressions of the Claim, including his or her views on the strengths and weaknesses of each Party’s perspective, in a plenary session to the Parties (the Mediator’s Impressions). The Mediator’s Impressions will be frank and open and will be consistent with what his or her thinking would be if he or she had heard the arguments and considered all the evidence at a formal hearing.

H. SUSPENSION/TERMINATION OF MEDIATION:

The Mediation may be suspended or terminated upon the agreement of the Parties; the request of one Party; if the period specified in an Order has elapsed; or in any other circumstance, if the Mediator is of the view that the Mediation should be suspended or terminated.

I. ROLE OF MEDIATOR:

The Mediator’s role is to facilitate communication and negotiation between the Parties and assist them in reaching a mutually acceptable resolution of all or some of the issues in dispute. The Mediator will not impose any decision upon the Parties. Authority for decision-making rests with the Parties. The Mediator has no duty to ensure the enforceability or validity of any Minutes or AIP that may be agreed to or to enforce this Mediation Agreement if one Party alleges that another Party has breached it.

J. LEGAL ADVICE:

The Mediator will not provide the Parties or anyone else involved in mediation with legal advice, representation, or services. The Mediator has no duty to assert or protect the legal rights or responsibilities of any Party or to raise any issue not raised by the Parties.

K. CONFIDENTIALITY:

Subject to paragraph G.3., all written and oral communications at a mediation session and the Mediator’s notes, records, and reports shall be deemed to be without prejudice settlement discussions. Information provided through mediation by one Party will not be used in any adjudicative process by another Party unless the information is otherwise obtainable through the adjudicative process. The Parties agree that they will not voluntarily disclose statements made and information provided through mediation to any person, whether connected to the dispute or not, unless ordered by a court or otherwise required by law or specifically agreed by the Parties. Subject to the filing requirement in paragraph D, the Parties further agree to keep the terms of any Minutes and AIP confidential unless disclosure is necessary to enforce a Settlement Agreement arising from those Minutes or AIP or the Parties specifically agree to disclosure. This confidentiality provision extends beyond Parties to anyone who signs this Mediation Agreement. A Party authorized to share information with a person who has not signed this Mediation Agreement is required to obtain that person’s agreement to keep the information confidential.

Except as noted above, the Mediator is bound to maintain the confidentiality of information and documents that are exchanged in relation to or during the mediation process. Disclosure to anyone who is not a Party or participant who has signed this Mediation Agreement is permissible only in the following circumstances:

  1. with the mediating Parties’ consent;
  2. when ordered by a court or otherwise required by law;
  3. by the Mediator to respond to any allegations about the Mediator or the mediation process;
  4. in any report or summary that is required to be prepared by the Mediator; or,
  5. for research or educational purposes, on a non-identifiable basis.

L. ACTIONS VS. MEDIATOR:

he Parties agree that they will not compel the Mediator to attend any legal proceeding or process for any reason or seek access to any oral or written information or to any notes, records, reports or other material in the Mediator’s possession. The Parties jointly and severally agree to indemnify and save the Mediator harmless from any and all liability and claims arising from this Mediation Agreement or as a result of the Mediation. The Mediator shall not be liable for anything done or omitted in relation to mediation and the Mediator has the same immunity as a Judge of a Superior Court of record. Any Party who involves a Mediator in contravention of this provision will be responsible for all associated costs, including legal costs.

M. ACKNOWLEDGEMENTS:

The Parties acknowledge that they have read the terms of this Mediation Agreement, they understand all the terms, and they wish to proceed on the terms indicated. They also confirm that they have read the Tribunal Mediation Practice Direction No. 14 and agree to abide by the requirements of the Practice Direction unless varied in this Mediation Agreement by the Parties and the Mediator.

N. SIGNING:

This Mediation Agreement may be signed by the Parties (or by their counsel for them), counsel, and the Mediator in separate counterpart copies of this Mediation Agreement. All counterparts together shall constitute one document.