Terms of service

BACKGROUND

A dispute has arisen between the parties. The parties have requested the mediator’s services, and the mediator has agreed, on the terms and conditions of this agreement to assist the parties in their attempts to resolve their dispute.

AGREEMENT

The mediation shall comprise all steps taken to attempt to resolve the dispute by mediation whether prior or subsequent to the execution of this agreement.

Summary: This agreement contains provisions in relation to the mediation; appointment and functions of the mediator; cooperation, costs and mediators fees; authority & representation; conduct of the mediation; communication between the mediator and a party, confidentiality, privilege, termination, enforcement, exclusion of liability & indemnity; and legislative provisions.

Appointment and functions of the Mediator

1. The parties appoint the mediator, and the mediator accepts the appointment, to mediate the dispute in accordance with the terms of this agreement.

2. The mediator will assist the parties to identify the issues between them and to explore options for and, if possible to achieve, the expeditious resolution of the dispute by agreement between them.

3. The mediator will not advise a party, nor make decisions for, nor impose a solution on the parties.

4. The mediator will not, unless the parties agree in writing to the contrary, obtain from any independent person’s advice or an opinion as to any aspect of the dispute. Any such advice or opinion shall be obtained only from such person or persons as may be agreed by the parties.

5. The mediator confirms that the mediator has no interest in the dispute, nor has the mediator had any prior dealings with any of the parties in relation to the dispute.

6. If in the course of the mediation the mediator becomes aware of any circumstances that might reasonably be considered to affect the mediator's capacity to act impartially, the mediator will, to the extent that the mediator may properly do so, immediately inform the parties of those circumstances. The parties will then confer and the mediator will continue to participate in the mediation if the parties so agree.

7. If, after consultation with the parties, the mediator forms the view that the mediator will be unable to assist the parties to achieve resolution of any of the dispute the mediator may terminate the appointment. The mediator may issue parties with a 60I certificate.

Co-operation, Costs and Mediator's Fees

8. The parties agree to participate in the mediation and have or will arrange and be responsible for the cost of the mediation. This cost is $240 per parent per session.

9. If either party fails to pay fee that are due, the mediator holds a lien over any documents, referrals or certificates until such fees are paid in full.

10. Each party will comply with reasonable requests made by the mediator to promote the efficient and expeditious resolution of the dispute. This includes avoiding swearing, name calling or other provocative language or behaviour.

11. Each party will meet their own costs for and in connection with the mediation.

12. Irrespective of the outcome of the mediation, the parties will pay the mediator's fees.

13. Any persons other than the parties (including legally qualified persons) attending the mediation to assist and advise a party in the mediation shall agree to an acknowledgement and undertaking as to confidentiality.

14. The mediator may communicate with a party or the parties orally or in writing.

15. The mediator may, as frequently as the mediator deems appropriate, meet with the parties together or separately.

16. Information, whether oral or written, disclosed in confidence by a party to the mediator need not be disclosed by that party, and may not be disclosed by the mediator, to any other party unless the party by whom that information was disclosed consents to such disclosure.

17. The parties and the mediator will not, unless required by law to do so, disclose to any person not present at the mediation, nor use, any confidential information furnished during the mediation unless such disclosure is to obtain professional advice or is to a person within that party's legitimate field of intimacy, and the person to whom the disclosure is made is advised that the confidential information is confidential.

18. The mediator agrees:

A. to keep confidential all information furnished by a party to the mediator on a confidential basis;

B. save with the consent of the party who furnished such information not to disclose the information to any other party.

19. In any arbitral or judicial proceedings the following will at all times be kept confidential and will be privileged, and the parties and the mediator will not disclose nor rely upon them nor issue nor cause to be issued any subpoena to give evidence or to produce documents concerning them:

A. any settlement proposal;

B. the willingness of a party to consider any such proposal;

C. any statement, admission or concession made by a party;

D. any statement or document made by the mediator.

20. The mediator or a party may at any time terminate the mediation by giving oral or written notice terminating the mediation to the mediator.

21. Upon the termination of mediation, 60I certificates may be issued according to the duties and discretion of the mediator.

22. No offers, proposals or agreements made or disclosed during mediation are to be enforceable.

23. The mediator will not accept appointment as an arbitrator nor act as an advocate in, nor provide advice to a party to, any arbitral or judicial proceeding relating to the dispute or any of them.

24. The mediator may give some procedural information, but will not issue any legal advice. Anything said by the mediator, or any materials or referrals supplied by the mediator, must not be taken as legal advice.

Exclusion of Liability and Indemnity

25. The mediator will not be liable to a party for any act or omission by the mediator in the performance or purported performance of the mediator's obligations under this agreement unless the act or omission is fraudulent.

26. Each party indemnifies the mediator against all claims by that party or anyone claiming under or through that party, arising out of or in any way referable to any act or omission by the mediator in the performance or purported performance of the mediator's obligations under this agreement, unless the act or omission is fraudulent.

27. No statements or comments, whether written or oral, made or used by the parties or their representatives or the mediator within the mediation shall be relied upon to found or maintain any action for defamation, libel, slander or any related complaint, and this document may be pleaded as a bar to any such action.

Legislative Provisions

28. The terms of this agreement are subject to the provisions of any legislation that may be applicable to or govern the mediation, and in the event of any inconsistency the provisions of the legislation will prevail.

SCHEDULE 1

1. The party acknowledges by selecting the tick box that they attend the mediation on the basis of their agreement to the terms of this mediation agreement

2. Each individual undertakes to the parties and the mediator:

A. to keep confidential to themselves and any persons to whom by reason of the terms of their employment or any contract of insurance they may properly communicate it, all information disclosed during the mediation including the preliminary steps (the “confidential information”);

B. not to act contrary to the undertaking above unless compelled by law to do so or with the consent of the party who disclosed the confidential information;

C. not to use confidential information for a purpose other than the mediation.

3. Each individual agreeing by selecting the tick box undertakes to the parties and the mediator that the following will be privileged and will not be disclosed in or relied upon or be the subject of any subpoena to give evidence or to produce documents in any arbitral or judicial proceedings between the parties to the mediation:

A. any settlement proposal;

B. the willingness of a Party to consider any such proposal;

C. any admission or concession made by a Party;

D. any statement or document made by the Mediator.