Court File No.: ______
SUPERIOR COURT OF JUSTICE
AGREEMENT TO MEDIATE
TERMS OF MEDIATION
The parties agree to mediate with ____________________, a mediator with Canadian Mediation Association, to attempt to settle their dispute in relation to the above-noted matter.
1. The Mediator is a neutral facilitator who will assist the parties reach their own settlement. The Mediator will not make decisions for the parties on how the matter must or should be resolved.
2. All written and oral communications made in the course of the mediation will be treated as confidential and without prejudice. Therefore:
a) The parties to this agreement agree that all communications and documents shared that are not otherwise discoverable will be shared on a without prejudice basis and will not be used in discovery, cross examination, at trial or in any other way, in this or any other proceeding.
b) The parties agree that all communications at the mediation and documents shared that are not otherwise public will be kept confidential from anyone who is not a party to the mediation. Everyone signing this document, whether or not a party to the litigation, agrees to be bound by this confidentiality provision of this agreement. Any individual signing on behalf of a corporation represents that he or she has authority to bind all members of the corporation to the confidentiality provisions in this agreement.
c) The Mediator will not reveal the names of parties or anything discussed in Mediation except:
i) to the lawyers or other professionals retained on behalf of the parties as deemed appropriate or necessary by the mediator;
ii) to non-parties consented to in writing by the parties, as deemed appropriate or necessary by the mediator;
iii) for research or education purposes, on an anonymous basis;
iv) where ordered to do so by a judicial authority or where required to do so by law;
v) where the information suggests that there will be actual or potential threat to human life or safety, or the commission of a crime in the future.
3. The parties agree that they will not at any time, before, during, or after mediation call the Mediator or anyone associated with Canadian Mediation Association as a witness in any legal or administrative proceedings concerning this dispute. To the extent that they may have a right to call the Mediator or anyone associated with Canadian Mediation Association as a witness, that right is hereby waived. If the foregoing provisions are found to be unenforceable, the parties agree to pay the then applicable hourly rate of the mediator for the time that the Mediator spends dealing with such issues. If a party decides to subpoena the Mediator, notwithstanding the above, the Mediator may move to quash the subpoena. That party agrees to reimburse the Mediator for whatever expenses he or she incurs in such an action, including lawyer fees, plus the then applicable hourly rate of the Mediator for time that is taken to deal with this matter.
4. The parties agree not to subpoena or seek any Court Order or use any other legal process in an attempt to demand the production of any records, notes, work product or the like, of the Mediator in any legal or administrative proceedings concerning this dispute. To the extent that they may have the right to demand these documents, that right is hereby waived. If the foregoing provisions are found to be unenforceable, the parties agree to pay the then applicable hourly rate of the mediator for the time that the Mediator spends dealing with such issues. If a party decides to subpoena the Mediator, notwithstanding the above, the Mediator may move to quash the subpoena. That party agrees to reimburse the Mediator for whatever expenses he or she incurs in such an action, including lawyer fees, plus the then applicable hourly rate of the Mediator for time that is taken to deal with this matter.
5. Any party calling the Mediator as a witness, issuing a subpoena against the Mediator or seeking production from the Mediator waives his/her/its right to rely upon and enforce the confidentiality provisions of this agreement as against the Mediator.
6. Notwithstanding the above, this Agreement to Mediate and any written agreement made by the parties as a result of mediation, may be used in any relevant proceeding, unless the parties make a written agreement not to do so.
7. The Mediator shall not be liable for anything done or omitted with respect to the Mediation and has the immunity granted to a Judge under the legislation in place in the jurisdiction in which the Mediator resides and the jurisdiction in which the mediation takes place.
8. While all parties intend to continue with mediation until a settlement agreement is reached or all parties conclude that there is no likelihood of a settlement agreement being reached, any party may withdraw from mediation at any time.
9. If the Mediator determines that it is not possible or appropriate to continue the mediation, the Mediator may terminate the process.
10. The parties may have lawyers present at the mediation. The Mediator will not provide legal representation or legal advice to any party at any time, and has no duty to assert or protect the legal rights and responsibilities of any party, to raise any issue not raised by the parties themselves, or to determine who should participate in the mediation.
11. The parties or those representing them at the mediation have authority to settle the dispute.
12. Where an agreement is reached, the parties or their lawyer will draft any settlement documents, or Minutes of Settlement and any releases.
13. The account for the Mediator’s fees, disbursements and administrative costs will be: [select one]
(a) split evenly among the parties.
(b) shared fifty percent (50%) by the Plaintiff and fifty percent (50%) by the Defendant.
(c) shared fifty percent (50%) by the Plaintiff and fifty percent (50%) between all Defendants; the Defendants share will be divided equally among them.
(d) paid one hundred percent (100%) by the Plaintiff.
(e) paid one hundred percent (100%) by the Defendant.
14. The parties and their lawyers hereby acknowledge that notwithstanding the above-noted direction as to the payment of the account, they remain jointly and severally liable for payment of the account pursuant to Rule 13(2) of the Mediation Rules of Canadian Mediation Association*.
I have read, understand and agree to the provisions of this Agreement signed the day____/month______/year_________.
*Rule 13.2 of the Mediation Rules of Canadian Mediation Association states: “The parties and their solicitors shall be jointly and severally responsible for the payment of the account rendered by Canadian Mediation Association. When the parties execute the Agreement to Mediate, as required prior to the commencement of the mediation, they may agree between them as to how the account of Canadian Mediation Association shall be paid but remain jointly and severally liable to Canadian Mediation Association if the account is not paid in full.”