MEDIATION AGREEMENT

Lawrence’s Mediation Agreement, to be signed by all parties/counsel at the commencement of the process.

  1. Role of the Mediator and the Parties
    1. The Mediator is an impartial third party facilitator whose role is to assist and encourage the Parties to:
      • communicate and negotiate respectfully, openly and in good faith with each other;
      • identify and convey their interests to each other;
      • assess risks;
      • consider possible settlement options; and
      • resolve their dispute.
    2. The Mediator will not provide legal advice, decide any issues between the Parties, or make any evaluations regarding the merits of any Party's case. The Parties are encouraged to obtain their own independent legal advice, and the Mediator shall make no representations or give undertakings in this connection.
    3. The Parties agree to comply with the terms of this agreement and act in good faith throughout the Mediation process. At no time during the process shall they or their counsel initiate or continue any legal proceedings regarding the dispute or the Mediation process. Unless otherwise provided for in this agreement, they further agree not to communicate with any third parties including law enforcement authorities or the media regarding the dispute or the Mediation process.
  2. Scheduling and Documentation
    1. The Mediator will schedule the mediation and notify in writing all parties or, where represented, their counsel of record.
    2. The Parties are required to exchange all records, documents, reports and correspondence they intend to rely on at the mediation with each other and the Mediator no later than 5 days before the commencement of the mediation session, as well as to deliver a statement of issues outlining the goals they wish to achieve at the mediation session.
  3. Attendance at the Mediation Session
    1. The Parties, and, where represented, their lawyers, are required to attend the mediation session, unless the court orders otherwise. All attending Parties must have requisite settlement authority.
    2. A Party who requires another person's approval before agreeing to a settlement of any or all issues between the Parties to the mediation shall, before the mediation session is scheduled to begin, arrange to have ready telephone access to the other person throughout the session, whether it takes place during or after regular business hours.
  4. Confidentiality
    1. Mediation is a private process, and all communications held during the mediation process and the Mediator's notes and records shall be deemed to be without prejudice settlement discussions. No Party may use a statement made during the Mediation process to advance that Party’s interest or to impeach the credibility of a witness of an adverse Party in proceedings related to the dispute. No one other than the Mediator has a possessory or proprietary entitlement to the material delivered to the Mediator as well as to the Mediator’s notes and records.
    2. The Mediator may hold private sessions (caucuses) with a Party as part of the mediation process. In that event, it is understood that the mediator may disclose to any party or to his counsel any information provided by the other party where the mediator believes such information to be relevant and helpful in the process, unless the party making the disclosure or providing the information asks the mediator to keep the information confidential.
    3. The Mediator and every person attending the mediation session will not disclose to anyone who is not a Party to the Mediation any information or documents exchanged as part of the Mediation process except:
      • with the Parties' written consent;
      • when ordered to do so by a court or otherwise required to do so by law;
      • when the information/documentation discloses an actual or potential threat to human life;
      • for the purposes of any report or summary that is required to be prepared by the Mediator pursuant to Rule 24.1; or
      • when the information/documentation is non-identifiable and is used for research, statistical, accreditation, or educational purposes and is limited to only what is required to achieve these purposes.
    4. The Mediator shall not be compellable as a witness in court proceedings by anyone, not limited to the Parties attending the mediation, nor shall the Mediator voluntarily give evidence in any court proceedings involving the Parties and the dispute mediated.
    5. The Mediator is not liable for any acts or omissions of any nature whatsoever, except for the Mediator’s fraud or own criminal misconduct.

Lawrence Herman C.Med.
B.C.L., LL.B., LL.M. (ADR)

Mediator
400 Walmer Road, Suite 1203
Toronto ON M5P 2X7

tel. 416 781-6442
mobile 416 804-6441
fax. 416 781-4859
lawrence@hermanmediations.com

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