Mediation Rules

 

The following are Mediation Rules pursuant to which Art ADR Global conducts mediation.

The European Code of Conduct for Mediators is adhered to.

 

1. The Concept

 

1.1       The parties will attempt in good faith to settle their dispute by mediation

            in accordance with the rules and their formal agreement to engage in mediation.

 

1.2       By entering into an agreement to engage in mediation and by proceeding with the

            mediation in accordance with these Rules and that agreement, unless agreed

            otherwise, neither party is prevented from seeking to enforce or protect their

            legal rights through the courts or arbitration at any time.

 

2. Agreement to engage in mediation

 

2.1       The parties, their representatives, the mediator and any observer must

            sign an agreement to engage in mediation prior to the commencement of the mediation.

 

2.2       The agreement to engage in mediation governs the relationship between the parties,

            all those attending the mediation and the mediator before, during and after

            the mediation session.

 

3. Attendance and Authority of Parties

 

3.1       The parties and their representatives and advisers, if any, will attend the

            Mediation Session to be led by the Mediator.

 

3.2       The parties and their representatives, if any, must have the authority to

            settle the dispute.  If either party or any representative attends with limited

            authority he or she must disclose the extent of the limitation to the mediator

            prior to the commencement of the mediation.

 

4. The Mediator

 

4.1       The mediator will:

            4.1.1    communicate with the parties and/or their advisers jointly or

                        separately prior to the mediation as well as meet with them jointly or

                        separately, if requested to do so, or if the mediator deems it

                        appropriate;

            4.1.2    prior to the commencement of the mediation session read and

                        familiarise themselves with each party’s Position Statement and any

                        documents provided in accordance with paragraph 10.1;

            4.1.3    determine the procedure for the mediation;

            4.1.4    maintain a Mediation Record stating the dates and times the

                        mediation commenced and concluded and the reasons for

                        termination; and

            4.1.5    abide by the terms and conditions of these Rules, the

                        agreement to egage in mediation and the European Code of Conduct for

                        Mediators as may be amended from time to time.

 

4.2 The Mediator may:

            4.2.1    if a settlement is not reached and if so requested and agreed by

                        the Parties and the Mediator render a non-binding opinion or

                        recommendation on how a settlement may be reached.

 

4.3 The Mediator will not:

            4.3.1    impose a settlement on the parties; or

            4.3.2    offer legal advice or act as legal adviser to any party at any time

                        in connection with the dispute.

 

4.4       The parties and the mediator acknowledge that the mediator is an

            independent contractor and is not appointed as an agent or employee of any

            of the parties. Neither the mediator nor a member of his or her firm or

            business will act, or have acted, as a professional adviser, or in any other

            capacity, for any of the parties in connection with the dispute either before,

            during or after the mediation session.

 

5. Representation:

 

            5.1       Parties do not have to be legally represented to attend the mediation.

            5.2       Where a party is unrepresented, we encourage such a party to obtain

                        independent legal advice in relation to the dispute and the mediation.

            5.3       Each party will notify the mediator and other parties involved in the

                        mediation of the names of those people intended to be present at the

                        mediation session and indicate the capacity of each attendee at the mediation; 

                        as a principal, a representative, an adviser or in any other capacity.

 

6. Position Statements and Documentation:

 

            6.1       Each party will prepare and deliver to the mediator, three (3) business

                        days prior to the mediation, a concise summary (‘Position Statement’) of the

                        matter in dispute, copies of documents referred to in the Position Statement

                        and those documents which the parties intend to refer to during the

                        mediation.

 

            6.2       The Position Statement and the documents referred to therein are private

                        and confidential and will not be disclosed by the Mediator to the other party             

                        or to any third party unless expressly authorised to do so by the party who             

                        has provided the Position Statement.

 

            6.3       There is no obligation on the parties to exchange Position Statements

                        however it may be helpful for them to do so.

 

            6.4       Similarly, the parties are encouraged to prepare and agree a joint bundle

                        of documents.

 

7. The Mediation:

            7.1       No formal record or transcript of the mediation will be made.

 

            7.2       The mediation is for the purpose of attempting to achieve a negotiated

                        settlement and all information provided during the mediation is provided

                        without prejudice and will be inadmissible in any litigation or arbitration of                 

                        the dispute subject to the provisions of any applicable law.

 

            7.3       Information, which would be otherwise admissible in any such litigation or

                        arbitration, shall not be rendered inadmissible as a result of its use in the

                        mediation.

            7.4       If the parties are unable to reach a settlement during the mediation

                        session, the mediator may, if requested to do so, facilitate further negotiation

                        after the mediation session itself has ended.

 

8. Settlement Agreement

 

                        Any settlement reached in the Mediation will not be legally binding until it               

                        has been recorded in writing and signed by or on behalf of the parties.

 

9. Adjournment and Termination

 

            9.1       The parties or the mediator may, at any time, adjourn the mediation in

                        order to consider further information or specific issues raised during the

                        mediation, obtain further information, or for any other reason which the

                        parties or the mediator consider helpful in furthering the mediation.

 

            9.2       The mediation shall terminate in any of the following circumstances:

                                    9.2.1    when a written settlement is executed and signed by the parties;

                                    9.2.2    if any or all of the parties decide not to continue;

                                    9.2.3    the time set for the mediation has expired without agreement for

                                                continuation or resumption;

                                    9.2.4    the mediator decides, at his/her absolute discretion, and notifies the parties, that continuing the                                                               mediation is unlikely to result in a settlement or is otherwise undesirable; or

                                    9.2.5    the mediator decides that he/she should retire for any of the reasons set out in the Code of Conduct.

 

            9.3       The mediator will provide the parties with written confirmation of the

                        termination of the mediation when the mediation extends past the mediation

                        session.

 

10. Confidentiality:

 

            10.1     Every person involved in the mediation will keep confidential the fact

                        that the mediation is to take place or has taken place and all information

                        (whether given orally or in writing) produced for or delivered as part of the

                        mediation including the settlement agreement (if any) except in so far as is

                        necessary to arrange the mediation, implement and enforce any such

                        settlement agreement or as may be required by any applicable law or the                           

                        provisions of any applicable insurance policy or terms of any professional engagement.

 

            10.2     All documents or other information produced for, or arising in relation to,

                        the mediation shall be privileged and will not be admissible as evidence or

                        discoverable in any litigation or arbitration connected with the dispute. This

                        does not apply to any information which would in any event have been

                        admissible for disclosure in such proceedings or as otherwise required by law

                        including without limitation the Proceeds of Crime Act 2002.

 

            10.3     Subject to Rules 12.1 and 12.2 the parties will not subpoena or

                        otherwise require the mediator or any observer or any other person attending

                        the mediation to testify or produce records, notes or any other information or

                        material whatsoever in any future or continuing proceedings.

 

            10.4     If a party does make such an application that party shall fully indemnify

                        the Mediator or any other person attending the Mediation in respect of any

                        costs incurred in resisting and/ or responding to such an application, including

                        reimbursement at the mediator’s standard hourly rate for the Mediator’s time spent

                        in resisting and/or responding to such an application.

 

            10.5     Where the mediation has taken place as a result of a court order, the

                        parties agree that the court shall be notified of the fact that the case has

                        been resolved through mediation. The notification shall come from the  

                        parties and take the form of a letter agreed or draft  order between the

                        parties at the conclusion of the mediation. The notification will not disclose the terms

                        of any settlement, unless otherwise agreed by the parties.

 

11. Mediation Costs:

 

            11.1     Unless agreed otherwise the costs of the mediation shall be borne

                        equally by the parties and as such may be taken into account in any further

                        legal proceedings.

 

            11.2     Each party to the mediation shall bear his/her/thier own costs and expenses of its

                        participation in the mediation including the costs of its legal representative

                        and advisers and unless agreed otherwise these costs will be costs in the

                        case.

        

         11.3     Where a party has a legal representative, that legal representative shall

                        be liable for their client’s share of the costs of the mediation in the same way

                        as they are liable for disbursements incurred in any litigation.

 

            11.4     Payment of the costs of the mediation shall be made to the mediator in cleared funds

                        and in advance of the mediation session.  The costs, if any, for venue hire shall be

                        agreed in advance and shall  be identified on the mediator's invoice for fees and disbursments.  

                        The mediator shall accordingly be responsible for the payment of the venue charges.

 

12. Exclusion of Liability

 

            Nothing in these rules shall limit or exclude the mediator’s or the observer’s

            liability for any matter in respect of which it would be unlawful for the

            mediator, or the observer to exclude or restrict liability. Subject to that

            proviso, neither the mediator, nor the observer 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 wilful misconduct.

 

13. Human Rights

 

            The referral of a dispute to mediation in accordance with these rules does

            not affect any rights that may exist under Article 6 or the European

            Convention of Human Rights.

 

14. Complaints Procedure

 

            If any Party is dissatisfied with the service or the conduct of the mediator, in

            the first instance the complaint should be addressed to the Mediator and a

            resolution sought at that stage.   The complaint shall be made no later than

            14 days from the termination of the mediation process. The mediator shall promptly

            and fully respond to any matters raised.  If is not possible to resolve an issue in this way,

            a complaint must be filed in writing to an accredited ADR provider whose details shall be

            provided to the relevant party within 7 days of the failure to resolve the issue by direct means

            with the mediator.  The complaint must be made  to the appointed ADR provider within 14 days

            of the provision of the ADR complaint processor. The complaint must be marked "Strictly Confidential"

            and a copy must be delivered to the mediator at the same date.

 

15 Governing Law

 

            These rules and any agreement to engage in mediation entered into, in which these

            rules are incorporated by reference or attachment and any matter arising out

            them shall be governed by and construed in accordance with the laws of

            England and Wales.

 

 

 

           © Art ADR Global 2017