MEDIATION RULES

UNDER SCHDULE "C" OF AMAC RULES

 

Article 1 Preliminary

    1. These rules may be referred to as "The AMAC Mediation Rules"

    2. In these Rules, unless the context otherwise requires:

    1. "Association" means the Association of Maritime Arbitrators of Canada

    2. "President" means the President for the time being of the Association

    3. "Mediation" means and includes mediation, conciliation, and any other form of agreed dispute resolution other than litigation and arbitration

    4. "Mediator" means and includes one or more persons appointed or nominated for the purpose of mediation

    5. Words specifying the masculine include the feminine.

Article 2 Application of the Rules

2.1 These Rules apply to mediation of disputes arising out of or relating to a contractual or other legal relationship where the parties seeking an amicable settlement of their dispute have agreed that the Rules shall apply.

2.2 The parties may agree to exclude or vary any of these Rules at any time.

Article 3 Number of Mediators

3.1 Unless the parties otherwise agree, there shall be one mediator. Where the parties agree that there shall be more than one mediator, each party shall appoint a mediator. The mediator or mediators shall be appointed within 30 days from the commencement of the mediation procedure as mentioned in Article 4 below.

Article 4 Commencement of Mediation Proceedings

4.1 The party initiating mediation shall send to the other party or parties a written invitation to mediate under these Rules, briefly identifying the subject of the dispute.

4.2 Mediation proceedings commence when the other party or parties accept the invitation to mediate in writing.

4.3 If the other party rejects the invitation, there will be no mediation proceedings.

    1. If the party initiating mediation does not receive a written reply within thirty days from the date on which it sends the invitation, or within such other period of time as specified in the invitation, there will be no mediation procedure.

Provided that, if there are more than two parties and one accepts but the other or others do not, then mediation in accordance with these Rules between the party making the invitation and the party accepting shall take place if they so agree.

Article 5 Appointment of the Mediator

  1. If the parties are unable to agree on the appointment of a mediator, they may apply in writing to the President for the appointment of a mediator. Such application shall be accompanied by a brief summary of the matters in dispute. Each party shall send a copy of its application and the summary to the other parties. The President may call for such further information as he may require. He shall then appoint the mediator and shall notify the parties of his name and address.

  2. Where the parties have agreed that each party should appoint a mediator and one or more of the parties has failed to make the appointment, the party or parties who have made the appointment may apply in writing to the President for the appointment of a mediator on behalf of the defaulting party or parties, and the procedure indicated in the preceding paragraph shall be followed.

  3. If the mediator resigns or is otherwise unwilling or unable to serve, a replacement mediator will be selected in the manner provided for in Article 5.1.

Article 6 Role of the Mediator

  1. The mediator shall assist the parties in an independent, neutral and impartial manner in their attempt to reach an amicable settlement of their dispute. He shall be guided by principles of objectivity, fairness and justice, giving consideration to, among other things, the rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute, including any previous business practices between some or all of the parties.

  2. The mediator may conduct the mediation proceedings in such manner as he considers appropriate, taking into account the circumstances of the case, the wishes the parties may express, including any request by a party that the mediator hear oral statements, and the need for a speedy settlement of the dispute.

  3. The mediator may at any time make proposals for the settlement of the dispute. Such proposal may be oral or in writing and need not be accompanied by any reasons therefor.

  4. The mediator may invite the parties to meet with him or may communicate with them orally or in writing. He may meet or communicate with the parties together or with each of them separately.

  5. Where the mediator receives factual information concerning the dispute from a party, he shall disclose the substance of that information to the other party or parties so that the other party or these other parties may have the opportunity to present any explanation which it or they consider appropriate. However, when a party gives information to the mediator subject to a specific condition that it be kept confidential, the mediator shall not disclose that information to the other party.

  6. The mediator may, with the consent of the parties, call any witness whom he thinks may be able to assist in the mediation.

  7. Unless the parties have agreed upon the place where meetings with the mediator are to be held, such place will be determined by the mediator, after consultation with the parties, having regard to the circumstances of the mediation proceedings.

  8. The mediator shall not be liable for any act or omission arising from his role as mediator.

Article 7 Representation and Assistance

    1. The parties may be represented or assisted by persons of their choice. The names and addresses of such persons are to be communicated in writing to the other party and to the mediator; such communication is to specify whether the appointment is made for purposes of representation or of assistance.

    2. All parties must attend a mediation session in person. Corporations, societies, or other legal persons must be represented by a person with full knowledge of the facts and full authority to settle the dispute, or ready access to someone with such authority.

Article 8 Submission of Statements to the Mediator

  1. The mediator, upon his appointment, shall request each party to submit to him a brief written statement describing the general nature of the dispute and the points at issue. Each party shall send a copy of its statement to the other party or parties.

  2. The mediator may request each party to submit to him a further written statement of its position and the facts and grounds in support thereof, supplemented by any documents and other evidence that such party deems appropriate. The party shall send a copy of its statement to the other party or parties.

  3. At any stage of the mediation procedure the mediator may request a party to submit to him such additional information as he deems appropriate.

Article 9 Co-operation of Parties with the Mediator

9.1 The parties will in good faith co-operate with the mediator and in particular will endeavour to comply with the mediator’s requests to submit written materials, provide evidence and attend meetings.

Article 10 Suggestions by Parties for Settlement of Dispute

10.1 Each party, on its own initiative or at the invitation of the mediator, may submit to the mediator suggestions for the settlement of the dispute.

Article 11 Settlement Agreement

  1. When it appears to the mediator that there exist elements of a settlement which would be acceptable to the parties, he shall formulate the terms of a possible settlement and submit them to the parties for their observations. After receiving the observations of the parties, he may reformulate the terms of a possible settlement in the light of such observations.

  2. If the parties reach agreement on a settlement of the dispute, they shall draw up and sign a written settlement agreement. The mediator may draw up, or assist the parties in drawing up, the settlement agreement.

  3. The parties, by signing the settlement agreement, put an end to the dispute and are bound by the agreement.

  4. The mediator may, if so requested by the parties, draw up the settlement agreement in the form of an arbitration award.

Article 12 Confidentiality

12.1 The mediator and the parties must keep confidential all matters relating to the mediation proceedings. Confidentiality extends also the settlement agreement (or arbitration award, if that be the case), except where its disclosure is necessary for purposes of implementation and enforcement.

Article 13 Termination of Mediation Proceedings

  1. The mediation proceeding is terminated:

    1. by the signing of the settlement agreement by the parties or by the signing of an arbitration award, on the date of such agreement or award;

    2. by a written declaration of the parties to the effect that further efforts at mediation are no longer justified, on the date of the declaration;

    3. by a written declaration of a party to the other party or parties to the effect that the mediation procedure is terminated on the date of the declaration;

    4. by a written declaration of the mediator to the effect that further efforts at mediation are no longer justified on the date of the declaration.

Article 14 Resort to Arbitration or Judicial Proceedings

14.1 The parties undertake not to initiate or continue, during the mediation procedure, any arbitration or judicial proceedings in respect of a dispute that is the subject of the mediation procedure, except that a party may initiate arbitration or judicial proceedings where, in its opinion, such proceedings are necessary to preserve its rights.

Article 15 Costs

15.A The Mediator’s Costs

15.A.1. Upon termination of the mediation procedure, the mediator shall fix the costs of the mediation and shall give written notice there of to the parties, who shall, unless otherwise ordered by the mediator, be liable to pay the same in equal proportions. Such costs shall include the mediator’s fees, which, unless agreed beforehand, shall be reasonable in amount having regard to the time involved, the amount in dispute and the complexity of the case, any out of pocket expenses and the expenses of any witnesses called by the conciliator with the consent of the parties.

15.A.2 If any party fails to pay the mediator’s costs or his proportion thereof within 90 days from the termination of the mediation procedure, the other party or parties shall be jointly and severally liable to indemnify the mediator in respect of such failure.

15A.3 The mediator may, on his appointment or at any time or times thereafter, order the parties to pay to him a deposit on account of his costs.

15.B The Parties’ Costs

15.B.1. Normally each party shall bear its own costs.

15.B.2 However, if the mediator should be of the opinion that any party has not genuinely tried to co-operate in the mediation or has been obstructive, so that the mediation procedure has been thwarted or has been made more expensive, he may order that that party should pay all or part of the costs of any other party; and, if such costs cannot be amicably agreed, the mediator may assess and decide the amount to be paid and a certificate signed by the mediator shall be conclusive and binding on the parties.

Article 16 Role of the Mediator in Other Proceedings

    1. The parties and the mediator undertake that the mediator will not act as an arbitrator, witness, lawyer, advisor or a representative of any party in arbitration or judicial proceedings in respect of a dispute that is the subject of the mediation procedure.

 

Article 17 Admissibility of Evidence in Other Proceedings

    1. Unless all parties to the mediation procedure otherwise agree, the parties undertake not to rely on the following as evidence in arbitration or judicial proceedings, whether or not those proceedings relate to the dispute that is the subject of the mediation procedure;

    1. views expressed or proposals made by any party in respect of a possible settlement of the dispute;

    2. admissions made by any party in the course of the mediation procedure

    3. proposals made by the mediator;

    4. the fact that a party had indicated its willingness to accept a proposal for settlement made by the mediator.

17.2 The parties further undertake, unless all parties otherwise agree, not to refer to or rely on any documents which might have been disclosed during the mediation procedure, whether voluntarily or at the request of the mediator or other party, but which would otherwise have been privileged and to return all such documents and all copies thereof to the party disclosing them.

 

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