The parties (“the Parties”) to the dispute in question (“the Dispute”), the Mediator and (where appropriate) the Appointing Body have entered into an agreement (“the Mediation Agreement”) in relation to the conduct of the Mediation. This procedure (“the Model Procedure”) has been incorporated into and forms part of the Mediation Agreement. The definitions in the Mediation Agreement apply to the Mediation Rules.
The Mediator, after consultation with the Parties where appropriate:
may attend any meetings with any or all of the Parties preceding the Mediation, provided all Parties are informed of each meeting before it takes place; will read before the Mediation the Summary and all the documents sent to him/her (see paragraph 6 below); will chair and determine the procedure for the Mediation; may assist the Parties in drawing up any written settlement agreement; will abide by the terms of the Model Procedure, the Mediation Agreement, and any relevant code of conduct. The Mediator (and any member of the Mediator’s firm or company) will not act for any of the Parties individually in connection with the Dispute in any capacity at any time after the Parties have entered into the Mediation Agreement. Neither the Mediator nor any Appointing Body shall act as agent of any Party. The Mediator (unless an employee of the Appointing Body) is acting as an independent contractor and not as an agent or employee of the Appointing Body. Preparation for the Mediation
The Parties, or at the request of the Parties the Appointing Body, will in conjunction with the Mediator agree:
a suitable venue and date for the Mediation; exchange of the summaries and documents before the Mediation; a meeting with any or all of the Representatives (and the Mediator if he/she has been appointed), either together or separately, to discuss any matters or concerns relating to the Mediation; general administration in relation to the Mediation; length of the Mediation. Participants
Each Party will state in the Mediation Agreement the names of:
the person(s) who will be the lead representative(s) for that Party (“the Representative”). The Representative should have authority to participate fully in the Mediation and to settle the Dispute on behalf of the relevant Party as he or she considers appropriate; any other person(s) (such as professional advisers or colleagues) who will also be present at, and/or participating in, the Mediation on that Party’s behalf. The Representative of each Party, will by signing the Mediation Agreement, bind the Party and all person(s) present on its behalf, to the provisions of this Model Procedure. Exchange of Information
Each Party will send to the other Party and the Mediator (or if appropriate, to the appointing body) at least two weeks before the Mediation, or such other date as may be agreed between the Parties and the Mediator, sufficient copies of:
a concise summary (“the Summary”) (not exceeding 10 pages in 10 point) of its case in the Dispute; and all the documents to which the Summary refers and any others to which it may want to refer in the Mediation (“the documents”), up to a maximum of one lever-arch file unless the Parties agree otherwise.
In addition, each Party may send to the Mediator and/or bring to the Mediation one lever-arch file of documentation which it wishes to disclose in confidence to the Mediator but not to any other party, clearly stating in writing that such documentation is confidential to the Mediator.
The Mediator will chair and determine procedure at the Mediation.
No formal record or transcript of the Mediation will be made. If the Parties are unable to reach a settlement, the Mediator may, upon it becoming apparent that no settlement will be reached, agree with the Parties to produce a non-binding recommendation on terms of settlement. This will not attempt to anticipate what a court might order or determine the legal rights and obligations of the Parties but will set out what the Mediator suggests are appropriate settlement terms in all the circumstances. Settlement Agreement
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.
a Party withdraws from the Mediation; or a written settlement agreement is concluded; or the Mediator decides that continuing the Mediation is unlikely to result in a settlement; or the Mediator decides it is not in the Parties’ interest for them to continue. No Stay of Proceedings
Any proceedings of whatever nature in relation to the Dispute may be commenced or continued notwithstanding the Mediation unless the Parties and/or the Court, Arbitrator or other relevant tribunal (“the Relevant Tribunal”) agree otherwise.
Every person involved in the Mediation will keep confidential and not use for any collateral or ulterior purpose:
the fact that the Mediation is to take place or has taken place, other than to inform the Relevant Tribunal dealing with the Dispute of that fact; and any information (whether given orally, in writing or otherwise) produced for, or arising out of or in relation to, the Mediation including any settlement agreement (unless expressly otherwise agreed in writing as part of the settlement) arising out of it; and no reference to the Mediation or any part of it shall be made in connection with any application for Security for Costs.
except insofar as is necessary to implement and enforce any such settlement agreement or to comply with any directions of the Relevant Tribunal.
All information (whether oral or in the form of documents, tapes, computer disks etc.) produced for, during, or as a result of, a Mediation will be without prejudice, privileged and not admissible as evidence or disclosable in any proceedings before the Relevant Tribunal relating to the Dispute, save for any information or document which would in any event have been admissible or discoverable in any such proceedings before the Relevant Tribunal. None of the parties to the Mediation Agreement will call the Mediator or any employee, consultant, officer or representative of any Appointing Body as a witness, consultant, arbitrator or expert in any proceedings before the Relevant Tribunal in relation to the Dispute and the Mediator will not voluntarily act in any such capacity without the written agreement of all the Parties. The Fees, Expenses and Costs
The Mediator’s fees and the other expenses of the Mediation (including those of any Appointing Body) will be borne equally by the Parties.
Each Party will bear its own costs and expenses of its participation in the Mediation. Neither the Mediator, TeCSA nor any other Appointing Body nominated under these Rules shall have any liability for any loss howsoever arising which is suffered by the Parties as a result of any act or omission (whether negligent or otherwise) of the Mediator or TeCSA or the relevant Appointing Body arising out of or in connection with the conduct of the Mediation.
Any reference to these rules in means to the rules current at the time that a dispute arises.