AGREEMENT TO MEDIATE
(hereinafter collectively “the Parties”)
– and –
W. Augustus Richardson, QC (the Mediator)
The parties agree to meet with the mediator to attempt, in good faith, to settle the dispute between them. The parties and the mediator agree as follows:
1. The mediator is an impartial third party. He is not a judge and will not evaluate the positions of the parties, though he may provide his views of the parties’ positions. He will not provide legal advice to the parties. His role is to assist the parties to participate in a fair process that has, as its goal, a settlement that meets their respective needs. There is no solicitor-client privilege or relationship between the mediator and the parties.
2. The parties acknowledge that open and honest communication is necessary for the mediation process to work. The parties agree to come to mediation with all relevant information and documents necessary to enable them to reach a fair, informed and complete settlement. The parties agree that they will come to the mediation with full authority to settle in the event that a mutually acceptable resolution to the dispute can be arrived at.
3. Mediation is without-prejudice negotiation. All communications and documents provided and shared in preparation for mediation and in the mediation shall be treated on a “without prejudice” basis. No information or document provided during mediation or for the purpose of mediation shall be used for any other purpose, including discovery, cross-examination, in an affidavit or arbitration or at a trial, unless otherwise producible. The parties agree that they will not summons, subpoena, or seek access to any documents prepared in connection with the mediation, including the notes and records of the mediator. The mediator shall not be called as a witness by either party in any proceeding.
4. The parties, their counsel and the mediator agree that:
a. the mediation will take place on a confidential basis;
b. they will not voluntarily disclose to anyone who is not a party to the mediation anything said or done during the mediation process; and
c. they will not disclose to anyone not involved in the mediation any documents submitted during or for the process, without the written consent of all parties.
5. The parties acknowledge that whatever is said or recommended by the mediator is said or recommended not as legal advice but as comments designed to facilitate in the mediation process. The parties acknowledge and agree that in deciding whether or not to enter into a settlement they will rely solely on the advice and recommendations given to them by their own legal representatives.
6. If a settlement or partial settlement is reached in mediation, it is the responsibility of the parties’ lawyers to draft settlement documents and releases.
7. The mediator may exercise his discretion to terminate the mediation at any time in the event that he determines the parties have reached an impasse. Either party may terminate the mediation at any time for any or no reason.
8. The parties and their counsel acknowledge and agree that they shall be jointly and severally responsible and liable their respective share of the mediator’s fees and any out-of-pocket expenses incurred by him in respect of the mediation, unless they agree otherwise as part of the mediation process. The fees and expenses shall be those posted from time to time by the mediator on his web site. Unless otherwise agreed, the fees and expenses of the mediator shall be shared equally by the parties.
The parties affirm that they have had full opportunity to read and understand this agreement, and sign it this
________________day of ______________________________________, 200_____.