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Conciliation and Mediation Rules
I - SCOPE
Section 1
These Rules apply when the parties seek an
amicable settlement to a dispute through mediation under the auspices of the
Centre in accordance with these Rules.
II - DEFINITIONS
Section 2
"Centre" or "QNICAC": means
the Canadian Commercial Arbitration Centre incorporated under Part III of the
Québec Companies Act (R.S.Q., ch. C-38) or any person, committee or institution
to whom the Centre entrusts the management of mediation affairs;
"Mediator" means a natural person
assigned to assisting parties in reaching an amicable settlement of a dispute
under the auspices of the Centre in accordance with these Rules. The same term
also applies to mediators when the parties elect to entrust the function to
several persons.
"Mediation" also includes
conciliation and any other designation insofar at the parties accept to abide
by these Rules.
"Rules" mean these Rules in their
version in force on the date of the mediation.
III - THE CENTRE'S ROLE
Section 3
1. The general purpose of the Centre is to
ensure the enforcement of these Rules and to this end, enjoys all necessary
powers to do so.
2. The Centre must act with utmost speed by
taking into consideration the parties' interest in seeing an amicable,
equitable, rapid and cost-effective settlement of the dispute.
3. The Centre ensures that the parties are
treated equally and are given a full opportunity to present their cases.
4. No action may lie against the Centre or the
mediator for any act performed in good faith within the exercising of its
duties granted under these Rules.
5. The mediator is an independent professional
and the Centre is not liable for his or her acts, omissions or neglect.
6. The Centre acts on behalf of the parties
when it incurs expenses owing to mediation, at the request of the parties or
that of the mediator.
IV - NOTICE OF MEDIATION
Section 4
1. When the parties have planned on submitting
the dispute that may occur between them to mediation under the auspices of the
Centre, either one may then request in writing that the Centre initiate the
procedure.
The request must identify the dispute and give
the parties' names and addresses. The Centre then invites the parties mentioned
in the request to submit to mediation.
2. When mediation is not provided by the
parties as a means for settling their dispute or the planned mediation is not
under the auspices of the Centre and these Rules, one of the parties may in the
same manner request that the Centre invite the other parties to consent to
mediation under the auspices of the Centre and in accordance with these Rules.
3. If one party refuses to submit to mediation
under the auspices of the Centre, he or she must give written notice to the
party that made the request of the impossibility of following the matter up.
V - APPOINTMENT OF THE MEDIATOR
Section 5
1. The Centre invites the parties to appoint a
mediator in accordance with the terms set forth in their agreement.
2. If the parties do not agree on the choice of
a mediator within the limits prescribed under their agreement, the Centre
appoints a single mediator from those among whom it recognizes their
qualifications for such type of dispute.
Section 6
1. To be qualified to act as a mediator, a
person must be independent, impartial, available and professionally
knowledgeable regarding the subject of the dispute and must maintain such
qualification for the entire duration of the mediation.
2. A person approached for a function in
mediation and any one to whom such function has been entrusted must immediately
inform the Centre and the parties of any reason that could raise doubts
concerning his or her qualifications to act.
VI - COMPETENCE OF THE MEDIATOR
Section 7
Mediation is assumed by a mediator recognized
as qualified by the Centre and who has accepted to act under its auspices and
in accordance with the Rules.
Section 8
1. The mediator assists the parties in an
independent and impartial manner in their efforts to reach an amicable
settlement of the dispute.
2. The mediator is guided by principles of
objectivity, fairness and justice, and takes into account among other things
the rights and obligations of the parties, practices in the area of commerce
being considered and the circumstances surrounding the dispute, including
business practices in use between the parties.
Section 9
The mediator applies and interprets these Rules
concerning his or her duties and responsibilities. Any other part of these
Rules is interpreted by the Centre.
VII - CONDUCT OF MEDIATION
Section 10
1. The Centre is seized with the dispute by a
notice given by the most expedient party and is accompanied with fees for
opening the file.
2. Mediation begins once the Centre has
obtained the parties' agreement and the mediator's fees and mediation expenses
determined by the Centre have been paid.
Section 11
The Centre organizes the first meeting between
the parties and the mediator. The date and place of subsequent meetings are
decided by the mediator after consulting the parties or their representatives.
Section 12
The parties may be represented or assisted by
persons of their choice, providing they give advance notice thereof to the
other parties and the mediator.
Section 13
1. The mediator conducts mediation proceedings
as he or she sees fit so as to reach a settlement rapidly, while taking into
account the circumstances and desires expressed by the parties.
2. Each party may submit suggestions for
settling the dispute to the mediator.
3. The mediator may, at any stage of the
proceedings, make proposals for settling the dispute. The proposals need not be
made in writing, nor need the reasons therefor be given.
Section 14
1. The mediator may invite the parties to meet
with him or her, or may meet with them separately.
2. When mediation is entrusted to several
mediators, they may decide jointly to act together or separately with the
parties.
Section 15
When the mediator receives factual information
concerning the dispute, he or she discloses the substance of that information
to the other party to allow the latter to present whatever explanation the
party deems useful. However, when a party furnishes information to the mediator
with the express condition that it must remain confidential, the mediator shall
not disclose it to the other party.
Section 16
The parties shall cooperate in good faith with
the mediator and shall especially comply with his or her request to produce
written documents, provide evidence or participate in meetings.
Section 17
The parties agree not to institute arbitral or
legal proceedings regarding the subject of the mediation while the mediation is
underway, unless such a measure is needed for preserving their rights.
Section 18
In the event mediation fails, the parties are
free to resort to arbitration, or to address courts of law if they are not
bound by an arbitration agreement.
VIII - THE TRANSACTION AGREEMENT
Section 19
1. If an agreement is reached between the
parties regarding all or part of the dispute, the mediator sets the terms and
then requests that the parties sign it. The mediator then signs the document as
a witness.
2. The agreement signed by the parties is a
contract of transaction within the meaning of the Civil Code. It binds the
parties and puts a definitive end to the dispute of which it is the object.
3. The transaction agreement may provide that
any eventual dispute regarding its performance may be submitted to final
arbitration without appeal under the auspices of the Centre and in accordance
with its Arbitration Rules.
IX - END OF MEDIATION
Section 20
1. Mediation comes to an end on the date when
the Centre receives a copy of:
— the transaction agreement signed by the
parties; or,
— a written statement by the mediator attesting
to the failure of the mediation; or,
— a written statement by a party putting an end
to the mediation.
2. Mediation also ends if the parties neglect
to provide a reserve for expenses for the mediator's fees and mediation
expenses in accordance with the Centre's requirements and within the deadlines
prescribed by it.
X - CONFIDENTIALITY
Section 21
Mediation is a private procedure that takes
place behind closed doors and whose attendance is restricted to those persons
invited by a party with the consent of the mediator.
Section 22
Mediation proceedings are confidential. The
mediator, the parties and the Centre, as well as any person who has knowledge
of some fact or information issuing from or during the mediation, shall respect
its confidential nature.
Section 23
The mediator shall not be required to provide
testimony relating to his or her mediation or to produce documents used therein
in arbitral or judiciary proceedings, whether the latter is or is not related
to the currently mediated dispute. The mediator may, however, be called upon to
provide testimony regarding the contents of the transaction signed by him or
her as a witness.
Section 24
The parties agree to respect the confidential
nature of mediation and not to invoke as elements of evidence in arbitral or
judicial proceedings
— the views expressed or suggestions made by a
party regarding a solution to the dispute;
— facts admitted to by a party in the course of
mediation proceedings;
— the fact that a party has indicated it would
be amenable to accepting a proposal for settlement advanced by the mediator or
another party.
— proposals presented by the mediator.
Section 25
The parties and the mediator promise that the
latter shall not perform the duties of an arbitrator, representative or counsel
for a party in arbitral or judicial proceedings related to the currently
mediated dispute.
XI - MEDIATOR'S FEES AND MEDIATION EXPENSES
Section 26
Unless there is any agreement to the contrary
between the parties, the mediator's fees and mediation expenses are evenly
distributed amongst them.
Section 27
1. Prior to the beginning of the mediation, the
Centre requires the parties to provide a reserve for expenses to guarantee
payment of the mediator's fees and expected mediation expenses, set in
accordance with the schedule appended to these Rules.
Mediation begins once the requested reserve is
received by the Centre.
2. During mediation, the Centre may submit to
the parties partial statements and request that they provide an additional
reserve for expenses to cover same.
3. At the end of the mediation, the Centre
transmits the final invoice to the parties and returns to them, if applicable,
any unexpended balance after compensating the amount due by each of them.
Section 28
The reserve for expenses is used to pay
mediator fees and mediation expenses. These expenses include:
a) Travel, lodging, subsistence and other
direct expenses incurred by the mediator at the time of mediation.
b) Expenses for room rental and other expenses
relevant to the holding of mediation proceedings.
c) the Centre's administrative fees; and,
d) expenses to be incurred by the Centre during
mediation, including if applicable expenses required by the traveling of its
representative when mediation takes place outside the regions of Quebec and
Montreal.
Section 29
Each of the parties directly assumes travel
expenses and other indemnities resulting from its witnesses, experts, advocates
or other persons representing or assisting the party during mediation.
Section 30
The mediator's fees for services already
rendered and expenses incurred for mediation, including the Centre's
administrative fees, are due by the parties even if the mediation ends without
the concluding of a transaction agreement, or if it fails in whole or in part.
EFFECTIVE DATE
Section 31
These Rules come into force on December 3,
1991.
