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. Online Dispute Resolution
    1. The Parties and their counsel have requested the use of the online dispute resolution technology known as Zoom Video Platform (“Zoom”) in the mediation. The Mediator shall host the mediation using his Zoom account without any additional cost to the Parties. The Parties and their counsel will be placed in the Zoom waiting room until the Mediator begins the mediation session. The Mediator will lock the rooms at this time. Any participant who wishes to return to the mediation session after leaving it will require the Mediator’s permission after the door is locked.
    2. The Parties agree that the mediation shall be a “mediation” for the purposes of all applicable legislation, regulations and rules.
    3. The Parties acknowledge that they have made their own inquiries as to the suitability and adequacy of Zoom for the proposed use in the mediation and of any risks in using Zoom, including any risks in relation to its security, privacy or confidentiality. The Parties are responsible to satisfy themselves on the suitability of their computer or other electronic device to access the mediation using Zoom, and that they shall have the appropriate internet connection for these purposes.
    4. The Parties agree that they or any participant to the mediation for which that Party is responsible will not record or permit the recording of all or any part of the mediation without the consent of all Parties and the Mediator.
    5. The Parties agree that they will inform the Mediator and each other in advance of the mediation of the names of all persons participating or who are able to hear any communications in the mediation and agree that no persons will participate or be allowed or be allowed to listen in on the mediation session without the consent of all the Parties and the Mediator. The Parties and their counsel will provide the Mediator with the email address of each intended participant including themselves.
  5. 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


Canadian Academy of Distinguished Neutrals ("CADN")

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