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
- it involves a neutral third party to facilitate
- it is a voluntary process;
- a party may withdraw at any time;
- it is quick, inexpensive and confidential;
- it enables the parties to reach results which may not be
possible in an adjudicative process such as litigation or arbitration and may be to the
benefit of both parties, particularly if there is a continuing business relationship;
- it involves representatives of the parties who have
sufficient authority to settle. In some cases, there may be an advantage in the
representatives being people who have not been directly involved in the events leading up
to the dispute and in the subsequent dispute.
The procedure for the mediation is flexible and this model
procedure can be adapted to suit the parties.
A mediation can be used:
- in both domestic and international disputes;
- whether or not litigation or arbitration has been commenced;
- in two party and multi-party disputes.
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 Foundations 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
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
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 Foundations
Model Mediation Agreement to the other party(ies).
Code of Conduct - paragraph 4
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
Mediators 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
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 Mediators 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 counsels 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
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
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 Mediators 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
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
partys 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
The Model Agreement is designed for domestic disputes but
can be easily adapted for international disputes by the addition of the following
"Language 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
"Governing Law and Jurisdiction The
Mediation Agreement shall be governed by, construed and take effect in accordance with
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.
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
12075, 237 Fourth Avenue S.W., Calgary, Alberta T2P 0H6
Tel. (403) 237-2872 Fax. (403) 237-2753
112 Adelaide Street East, Toronto, Ontario M5C 1K9
Tel. (416) 307-0019 Fax. (416) 307-0011
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