INSOL INTERNATIONAL MEDIATION PANEL PRO-FORMA MEDIATION AGREEMENT

Transcription

1 INSOL INTERNATIONAL MEDIATION PANEL PRO-FORMA MEDIATION AGREEMENT 1

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3 Mediation agreement This agreement is made on between 1) (Party 1) 2) (Party 2) (together the Parties) 3) of (Mediator); and 4) INSOL International (a company incorporated in accordance with the laws of England and Wales) whose registered office is at 6 7 Queen Street, London EC4N 1SP and whose registered number is (INSOL) 1. Agreement to mediate a) Appointment of mediator Mediator is appointed by the Parties to act as an INSOL International Mediator for the purposes of this agreement. INSOL consents to the appointment. b) Identification and submission of dispute The Parties request Mediator to assist them to find a consensual resolution of the following question/issue: c) Function of Mediator The function of Mediator is proactively to assist the Parties in the consensual resolution of the question by facilitating negotiations, devising such procedures as may be required for that purpose and managing the process. It is not the function of Mediator to advise any Party as to any aspect of the matters requiring resolution. 1

4 d) Interim stay of other proceedings Each Party undertakes not to commence or continue any judicial or arbitral proceedings to determine the question or issue which is the subject of this agreement before the mediation resulting from this agreement is terminated unless and to the extent that that Party considers it necessary to do so in order to preserve rights and that Party notifies Mediator and the other Parties that it intends so to do. 2. Authority of signatories Each signatory to this agreement signing in a representative capacity warrants that he or she has full authority to bind the person or persons on whose behalf he or she has signed. 3. Procedure Mediator shall determine the procedure to be followed for the purposes of the mediation in consultation with the Parties and having regard to the terms of the s Outline Procedure but Mediator s decisions in that respect shall be final. 4. Mediator a) Competence and availability Mediator confirms that he has satisfied himself that he has the necessary skills and experience to make him suitable to accept his appointment and that he will have the necessary time and capacity to fulfil his functions under this agreement within a timescale agreed with the Parties. b) Independence and impartiality Mediator confirms that he is unaware of any matter or association which would constitute a conflict of interest or duty on his part or which might reasonably be perceived to do so. If he subsequently becomes aware of any such conflict or of matters which might reasonably be perceived to create such a conflict, Mediator will forthwith disclose the same to the Parties. c) No other roles Mediator will not accept any other role in relation to the subject matter of the mediation whether before or after the mediation resulting from this agreement is terminated without the prior consent in writing of the Parties. d) Fees and expenses Mediator will charge Ï for his services under this agreement. In addition, Mediator will charge his reasonable out-of-pocket expenses and any properly chargeable taxes. The Parties shall be jointly and individually liable for payment to Mediator. 2

5 e) Administrative support In the proper performance of his functions under this agreement, Mediator may use the resources of his own firm (where applicable) for administrative support at its ordinary rates of charge or, in other cases, procure external support and assistance. The resulting costs shall be for the account of the Parties. f) Counsel and experts Mediator may also require the assistance of counsel and other experts but will not engage any such services without the prior consent in writing of the Parties. Any resulting costs shall be for the account of the Parties. Mediator will decide whether any such advice is to be private to himself or open to the Parties (but will not share such advice with one or more Parties without also sharing it with the others). g) Deposits In addition to the submission of fee accounts Mediator may from time to time require the Parties to deposit reasonable funds with him on account of future fees, expenses (including the costs of administrative support and any agreed retention of counsel or other experts) and properly chargeable taxes and Mediator shall be entitled (but not required) to suspend work under this agreement whilst any requested deposit remains unpaid. 5. Confidentiality of communications To the maximum extent permissible under all applicable laws: a) Without prejudice All communications between the Parties and/or Mediator made in the course of the mediation resulting from this agreement shall be without prejudice and shall not be disclosed in any other proceedings. b) Preservation of privilege The disclosure of any legal advice shall not waive any privilege attaching to that advice. c) Confidentiality of communications between the Parties All communications between the Parties in the course of the mediation shall be treated as confidential and all new information disclosed by one Party to another in the course of the mediation shall be treated as confidential and not disclosed or relied upon by that other Party or Mediator for any other purpose (including any judicial or arbitral proceedings following a failure of the mediation). d) Confidentiality of communications with Mediator Each Party shall be at liberty to have confidential discussions with Mediator for any purpose (for example, to understand the proposed procedure or to examine possible terms of settlement). Mediator shall not disclose the content of such discussions without the prior consent in writing of that Party. 3

6 e) Recording and note-taking The proceedings of the mediation shall not be recorded. Abbreviated note-taking shall be permitted for the purposes of facilitating the mediation but not the maintenance of anything purporting to be a verbatim or full record. f) Undertaking not to compel evidence The Parties undertake to each other and Mediator that they will not call Mediator as a witness in any judicial or arbitral proceedings relating to the subject-matter of the mediation nor will they seek the examination of Mediator or any other compulsory disclosure of any information or materials disclosed to Mediator in the course of the mediation. In the event of any breach of these undertakings, the Party in breach will indemnify Mediator and the other Parties against all costs reasonably incurred in resisting compulsion and, in the case of Mediator, Mediator shall in addition be entitled to charge that Party in accordance with clause 4(d) of this agreement as if Mediator were acting in the course of his duties under this agreement. 6. Liability a) INSOL INSOL shall have no liability to Mediator or any Party for any matter arising out of or in connection with this agreement. Mediator and the Parties acknowledge that INSOL is a signatory to this agreement for the sole purposes of giving its consent to the appointment of Mediator and excluding such liability, and that it does not undertake and has not undertaken any obligations in respect of the proper performance of this agreement. b) Mediator Mediator shall perform his functions under this agreement impartially and in good faith but shall have no liability for any act or omission unless fraud or wilful misconduct is proved. 7. Resolution of dispute No settlement terms shall bind any Party unless agreed in writing and signed by a duly authorised signatory. The fact and terms of settlement shall not be confidential unless the settlement agreement so provides. 8. Termination of mediation In addition to termination by settlement of all matters to be resolved by the mediation: a) Any Party may terminate the mediation pursuant to this agreement at any time by notice in writing to Mediator and the other Parties. b) Mediator may terminate the mediation pursuant to this agreement at any time by notice to the Parties if he considers that pursuit of the mediation will be futile or disproportionate to the issues, or if a conflict of interest or duty arises or for other just cause. 4

7 c) Termination of the mediation however arising shall not affect Mediator s rights to remuneration, expenses and properly chargeable taxes under clause 4(d) down to and including the conclusion of all formalities associated with its termination or the liability of the Parties to pay such sums. 9. Governing law of mediation agreement This agreement is governed by English law and the courts of England and Wales shall have exclusive jurisdiction to decide any matters arising out of or in connection with it. Signed: (for and on behalf of Party 1) (for and on behalf of Party 2) (Mediator) (for and on behalf of INSOL) 5