Terms of Business (“the Terms”) of
Rebecca Attree acting though Attree Estates Limited
(“the Mediator”)
- The Concept
1.1 The Parties will attempt in good faith to settle their Dispute by Mediation in accordance with the Terms and an Agreement to Mediate (“Agreement to Mediate”).
1.2 By entering into an Agreement to Mediate and proceeding with the Mediation in accordance with the Terms and the Agreement to Mediate, unless agreed otherwise, neither party is prevented from seeking to enforce or protect their legal rights through the courts or arbitration at any time.
- Agreement to Mediate
2.1 The Parties, their representatives, the Mediator and any Observer must sign an Agreement to Mediate prior to the commencement of the mediation.
2.2 The Agreement to Mediate and the Terms govern the relationship between the Parties, all those attending the mediation and the Mediator before, during and after the Mediation Session. All expressions defined in the Agreement to Mediate shall have the same meaning in the Terms.
- Attendance and Authority of Parties
3.1 The Parties and their representatives and advisers, if any, will attend the Mediation Session to be led by the Mediator.
3.2 The Parties and their representatives, if any, must have the authority to settle the Dispute. If a Party is a natural person, that person must attend the mediation session. If a Party is not a natural person it must be represented at the Mediation Session by an officer or employee with authority to make binding agreements settling the Dispute. If that person comes with limited authority he or she must disclose the extent of their limitation to the Mediator prior to the commencement of the Mediation.
- The Mediator
4.1 The Mediator will:
4.1.1 communicate with the Parties and/or their advisers jointly or separately prior to the Mediation as well as meet with them jointly or separately, if requested to do so, or if the Mediator deems it appropriate;
4.1.2 prior to the commencement of the Mediation Session read and familiarise herself with each party’s Position Statement and any documents provided in accordance with paragraph 6.1;
4.1.3 determine the procedure for the Mediation and use reasonable endeavours to facilitate the Parties to reach a resolution of the Dispute;
4.1.4 abide by the Terms, the Agreement to Mediate and the European Code of Conduct for Mediators that can be viewed at: http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.htm
as may be amended from time to time (the “Code of Conduct”).
4.2 The Mediator may if a settlement is not reached (and if so requested and agreed by the Parties and the Mediator) render a non-binding opinion or recommendation on how a settlement may be reached.
4.3 The Mediator will not:
4.3.1 impose a settlement on the Parties; or
4.3.2 offer legal advice or act as legal adviser to any Party at any time in connection with the Dispute.
4.4 The Parties and the Mediator acknowledge that the Mediator is an independent contractor and is not appointed as an agent or employee of any of the Parties. Neither the Mediator nor a member of her firm or business will act, or have acted, as a professional adviser, or in any other capacity, for any of the Parties in connection with the Dispute before, during or after the Mediation Session.
- Representation
5.1 Parties do not require legal representation to attend the mediation.
5.2 Where a party is unrepresented at the mediation, they may obtain independent legal advice in connection with the Dispute and the mediation.
5.3 Each party will notify the Mediator of the names of those people intended to be present at the Mediation Session and indicate their capacity at the Mediation as a principal, representative, adviser or any other capacity.
- Position Statements and Documentation
6.1 Each party will prepare and deliver to the Mediator, seven (7) business days prior to the mediation, a concise summary (‘Position Statement’) of the matter in Dispute, copies of documents referred to in the Position Statement and those documents that the Parties intend to refer to during the Mediation.
6.2 The Position Statement and the documents it refers to are private and confidential and will not be disclosed by the Mediator to the other Party or to any third party unless expressly authorised to do so by the Party who has provided the Position Statement.
6.3 There is no obligation on the Parties to exchange Position Statements however they are encouraged to do so.
6.4 Similarly, the Parties are encouraged to prepare and agree a joint bundle of documents.
- The Mediation
7.1 No formal record or transcript of the Mediation will be made.
7.2 The Mediation is for the purpose of attempting to achieve a negotiated settlement and all information provided during the Mediation is provided without prejudice and will be inadmissible in any litigation or arbitration of the Dispute subject to the provisions of any applicable law.
7.3 Information, which would be otherwise admissible in any such litigation or arbitration, shall not be rendered inadmissible as a result of its use in the Mediation.
7.4 If the Parties are unable to reach a settlement during the Mediation Session, the Mediator may, if requested to do so, facilitate further negotiation after the Mediation Session itself has ended.
- Settlement Agreement
Any settlement reached in the Mediation will not be legally binding until it has been recorded in writing and signed by or on behalf of the Parties.
- Commencement, Adjournment and Termination
9.1 The Mediation shall be deemed to have commenced on the date and at the time determined by the Mediator.
9.2 The Parties or the Mediator may, at any time, adjourn the Mediation in order to consider further information or specific issues raised during the Mediation, obtain further information, or for any other reason which the Parties or the Mediator consider helpful in furthering the Mediation. The Mediator will liaise with the Parties and the Mediator to reconvene or resume the Mediation.
9.3 The Mediation shall terminate in any of the following circumstances:
9.3.1 when a written settlement is executed and signed by the Parties;
9.3.2 if any or all of the Parties decide not to continue;
9.3.3 the time set for the Mediation has expired without agreement for continuation or resumption;
9.3.4 the Mediator decides, at her absolute discretion, and notifies the Parties, that continuing the Mediation is unlikely to result in a settlement or is otherwise undesirable; or
9.3.5 the Mediator decides in her sole discretion that she should retire.
- Confidentiality
10.1 Every person involved in the Mediation will keep confidential the fact that the Mediation is to take place or has taken place and all information (whether given orally or in writing) produced for or delivered as part of the Mediation including the settlement agreement (if any) except in so far as is necessary to implement and enforce any such settlement agreement or as required by any applicable law or the provisions of any applicable insurance policy or terms of any professional engagement.
10.2 All documents or other information produced for, or arising in relation to, the Mediation will be privileged and will not be admissible as evidence or discoverable in any litigation or arbitration connected with the Dispute. This does not apply to any information that would in any event have been admissible for disclosure in such proceedings or as otherwise required by law including without limitation the Proceeds of Crime Act.
10.3 Subject to Clauses 10.1 and 10.2 no party involved in the Mediation will subpoena or otherwise require the Mediator, any Observer, or any other person attending the mediation to testify or produce records, notes or any other information or material whatsoever in any future or continuing proceedings.
10.4 If a party does make such an application that party will fully indemnify the Mediator or any other person attending the Mediation in respect of any costs incurred in resisting and/ or responding to such an application, including reimbursement at the Mediator’s standard hourly rate for the Mediator’s time spent in resisting and/or responding to such an application.
10.5 Where the Mediation has taken place as a result of a Court order, the Parties agree that the Court shall be notified of the fact that the case has been resolved through mediation. The notification will come from the Parties and take the form of a letter agreed or draft Tomlin Order between the Parties at the conclusion of the Mediation. The notification will not disclose the terms of any settlement, unless otherwise agreed by the Parties.
- Mediation Costs
11.1 Unless agreed otherwise the costs of the Mediation will be borne equally by the Parties and as such may be taken into account in any further legal proceedings.
11.2 Each party to the Mediation will bear its own costs and expenses of its participation in the Mediation including the costs of its legal representative and advisers and unless agreed otherwise these costs will be costs in the case.
11.3 Where a party has a legal representative, that legal representative will be liable for their client’s share of the costs of the Mediation in the same way as they are liable for disbursements incurred in any litigation.
11.4 Payment of the costs of the Mediation will be made to the Mediator in cleared funds in advance of the mediation session.
11.5 Cancellation or postponement of the Mediation within 8 clear business days of the Mediation will not give rise to any fee being payable unless the venue charges a cancellation fee. Cancellation or postponement thereafter may give rise to a cancellation fee of up to 50% of the Mediation fee, at the Mediator’s discretion.
- Exclusion of Liability
Nothing in these Rules shall limit or exclude the Mediator’s or the Observer’s liability for any matter in respect of which it would be unlawful for the Mediator or the Observer to exclude or restrict liability. Subject to that proviso, neither the Mediator nor the Observer shall be liable to any party for any act or omission in connection with the services provided by them in, or in relation to, the Mediation, unless the act or omission is fraudulent or involves wilful misconduct.
- Human Rights
The referral of a Dispute to Mediation in accordance with the Terms does not affect any rights that may exist under Article 6 of the European Convention of Human Rights.
- Complaints Procedure
If any Party is dissatisfied with the service or the conduct of the Mediator, please contact the Mediator within 14 days. If the complaint cannot be resolved with 30 days of the notification, it will be referred to the Civil Mediation Council and considered pursuant to its Complaints Procedure.
- Governing Law
The Terms and any Agreement to Mediate entered into in which the Terms are incorporated by reference or attachment and any matter arising out them shall be governed by and construed in accordance with the laws of England and Wales.
- Dispute Resolution
Any Dispute relating to the Terms and any Agreement to Mediate entered into in which the Terms are incorporated by reference or attachment and any matter arising out of them which cannot be resolved by negotiation between the Parties within 30 days of either party giving notice to the other Party that a Dispute has arisen shall be submitted to Mediation pursuant to the Rules of ADRg. Failing settlement of that Dispute by mediation within 30 days thereafter, the Dispute shall be determined by the appointment of a single arbitrator to be agreed between the parties, or failing agreement within fourteen days, after either party has given to the other a written request to concur in the appointment of an arbitrator, by an arbitrator to be appointed by the President or a Deputy President of the Chartered Institute of Arbitrators. The language of the arbitration shall be English and the seat and venue London.
