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Jane C. Demaray Jane C. Demaray

CIVIL & COMMERCIAL CASES:

terms of mediation

I conduct mediations on the Terms of Mediation set out below. The Terms also form part of my standard Mediation Agreement (refer to the "Sample Agreement" tab, right). Whether there is a formal Agreement to Mediate or not, all counsel and parties mediating with me are subject to these Terms.

Jane C. Demaray

TERMS OF MEDIATION

Jane C. Demaray
Mediator/Arbitrator
Jane C. Demaray
Jane C. Demaray
Jane C. Demaray
Jane C. Demaray
Jane C. Demaray

  1. definition: Mediation is an informal settlement process by which the parties try to reach a solution that addresses their interests and needs.
  2. mediation is voluntary: Mediation is based on the consent of all parties. The parties decide on the issues for mediation. The parties are entitled to withdraw from the mediation process at any time. Any settlement in mediation is reached by agreement of the parties.
  3. mediation is confidential: The mediation is a confidential process and the parties will keep all communications and information forming part of the mediation in confidence, save only for consultation with their lawyer. If enforcement of a settlement agreement becomes necessary, this rule does not apply.
  4. mediation is "off-the-record": A mediation session is a settlement negotiation, and it is conducted on a "without prejudice" basis. All communications made in the mediation, and all documents prepared for the mediation, are made for the mediation, alone. All such communications and documents are strictly off-the-record. They cannot be subject to disclosure through discovery or any other process, and they cannot be admitted into evidence in any context for any purpose, including impeaching credibility. This rule applies to any admission or apology that may be made at mediation, and to any opinion or suggestion made by the mediator. No transcripts or recordings are to be made of the mediation session.
  5. no fresh steps: While the mediation is in progress, no party will initiate or take any fresh steps in any legal, administrative or arbitration proceeding related to the issues. The only exceptions to this are
    • matters where all parties consent prior to any action being taken, and
    • matters warranting an emergency order being made without notice.

    This rule is intended to ensure that the parties feel free of the pressure of imminent court proceedings, to protect and encourage meaningful participation in the mediation.

  6. good faith: The parties have a responsibility to honour these terms of mediation and to conduct themselves in good faith throughout the mediation. The parties understand that the case is not appropriate for mediation, if they or any of them cannot conduct themselves in good faith — rather, it should be conducted in a courtroom, where a Judge can enforce the rules of law and procedure. The parties further understand that a settlement reached in mediation may be set aside if it is later shown that there was bad faith in its formation.
  7.   the role of the mediator:

  8. mediator is a facilitator: The mediator is not a judge, arbitrator or assessor. The mediator is a facilitator, only, and is impartial. The mediator's role is to assist the parties in negotiating a voluntary settlement on the issues, if possible. The mediator has no power to impose a settlement.
  9. mediator is not legal counsel: The mediator does not provide legal advice, and does not represent any party in the mediation.
  10. mediator cannot be called as a witness: No party will call the mediator as a witness for any purpose whatever, either during or after the mediation.
  11. mediator's notes are not compellable: The parties agree that the documents, records and notes maintained by the mediator in connection with this case are her personal property. No party will seek access to any documents prepared for or delivered to the mediator in connection with the mediation, including any records or notes of the mediator.
  12. mediator's rights & obligations as to disclosure: Generally, the mediator is subject to the same obligations as to confidentiality as govern the parties: the mediator will not voluntarily disclose anything said or done at the mediation, or any materials submitted to her, to anyone who is not a party to the mediation. However, there are some legal exceptions to that obligation. The mediator may make limited disclosure --
    • to any person designated or retained by any party such as a professional advisor, as deemed appropriate or necessary by the mediator;
    • for research or educational purposes, on an anonymous basis;
    • where ordered to do so by a judicial authority;
    • where required to do so by law; and
    • where the information suggests an actual or potential threat to human life or safety.
  13. mediator's communications: The parties acknowledge that there is a risk of loss of confidentiality through the use of e-mail and other forms of communication. The parties authorize the mediator to communicate with them and with their counsel via e-mail, notwithstanding such risk.
  14. mediator's right to end mediation: Should the mediator decide that it is not possible to resolve the issues in dispute by continuing the mediation, or that continuation of the mediation may be detrimental to one or both of the parties, the mediator has the right to terminate the mediation. The mediator's right to terminate the mediation is absolute and unconditional.
  15. limitations on mediator's responsibilities:
    • the mediator has no duty to assert or protect the rights of any party, or to raise any issue not raised by the parties themselves;
    • the mediator is not responsible to determine who should participate in the mediation;
    • the mediator is not responsible to ensure that a settlement occurs. Responsibility for resolution of the issues between the parties rests with them, alone;
    • the mediator has no duty to ensure the enforceability or validity of any agreement that may be reached at mediation;
    • the mediator will not be liable in any way, save for loss caused by her wilful default.

      preparation for mediation:

  16. documents for mediation: In preparation for the mediation session, each party shall prepare a Statement of Issues in the form provided by the Rules, which shall be delivered to the mediator with a copy to all other parties. These Statements are to be delivered not less than three (3) business days before the date scheduled for the mediation. In addition, the Rules provide that the plantiff shall provide copies of the pleadings to the mediator.
  17.   the mediation session:

  18. meeting: On the date scheduled for mediation, the parties will attend and will discuss the matter with the mediator individually or together, in person, with a view to achieving settlement.
  19. full authority to settle: The parties will attend the mediation with full, unqualified authority to settle.
  20. full disclosure: The parties will disclose fully and honestly all material facts, information and documents to each other and to the mediator in the documents they present at mediation and in their discussions at the mediation session(s). The parties understand that, if full and fair disclosure is not made, any settlement agreement made through mediation may be set aside.
  21. mediator's right to caucus: The mediator will sometimes meet with the parties together, in joint sessions, but may also meet or communicate with either party or their counsel separately at any time. Such a private meeting is called a "caucus". The mediator may, in her discretion, disclose information or documents provided in caucus to another party, and/or counsel for another party, unless otherwise agreed during the caucus.
  22.   obligation of the parties to obtain advice:

  23. The parties are responsible for obtaining their own independent professional advice, including legal advice and representation, if desired. The parties understand that such advice will help them to appreciate their respective rights and obligations, and help them to decide whether various settlement options are reasonable and fair.
  24. continuing obligation: The parties are required to obtain advice before attending mediation. However, the obligation to obtain advice continues: therefore,
    • if, at any time during the course of the mediation, a party has new questions or concerns that require further legal advice, that party is responsible to request a recess in order to obtain it; and
    • if the mediation takes place over a series of sessions, the parties are advised to seek independent legal advice from time to time during the mediation process, as well.

      parties' acknowledgments:

  25. the parties acknowledge that there is no guarantee of settlement in mediation, and that they may not be fully satisfied with the outcome. The parties understand that mediation may lead to delay, expense and increased difficulty in any subsequent litigation and that any applicable limitation period(s) may not be suspended during mediation. The parties understand that each of them should obtain legal advice as to these risks and limitations before agreeing to mediate.
  26. The parties now initial this page to indicate that they have read these terms of mediation and understand them:

    Date: ___________                  Initials: ___________   ___________.