SECTION 1: Application of the Rules.
a) Whenever, by mutual agreement or contract, the parties have provided for or agreed to mediate existing or future disputes under the auspices of SPIDR, they shall be deemed to have made this Practice Direction a part of their agreement.
SECTION 2: Commencement of action (Mediation).
a) Any party or parties to a dispute may initiate mediation by filing with the mediator a written request for mediation.
b) Upon receipt of such a request, the mediator will contact the other party involved in the dispute and attempt to obtain a submission to mediation.
c) SPIDR can also assist parties in the resolution of their disputes by extending an invitation to the disputing parties.
SECTION 3: The Mediation Agreement.
The parties and the Mediator will enter into an agreement (“Mediation Agreement”) in relation to the confidentiality and conduct of the mediation process.
SECTION 4: The Mediator's Qualification.
a) In appointing a mediator, such mediator must have considerable relevant experience in their particular field of ADR practice and be trained and duly certified by a reputable and recognized organization such as The NCMG (Negotiation and Conflict Management Group) College, SPIDR, CEDR (Centre for Effective Dispute Resolution), AFMA (African Mediation Association) etc.
b) No person shall serve as a mediator in any dispute in which that person has any financial or personal interest in the result of the mediation, except with the written consent of all parties.
c) Every prospective mediator shall, prior to accepting an appointment, disclose any circumstance likely to create a presumption of bias or prevent a prompt meeting with the parties.
d) SPIDR shall upon receipt of such information either replace the mediator or immediately communicate the information to the parties for their comments.
e) In recommending or appointing a mediator, SPIDR shall have regard to such considerations as are likely to secure the appointment of an independent, impartial and experienced mediator.
f) The mediator shall abide by the terms of SPIDR Mediation Procedure and The SPIDR Code of Ethics for Mediators.
SECTION 5: Role of the Mediator.
a) The role of a Mediator is to assist the parties in an impartial manner in their attempt to reach an amicable settlement of their dispute. He does not have the authority to impose a settlement on the parties
b) The Mediator should in his conduct of the mediation process take into account the circumstances of the case, the underlying interest of the parties and the need for a speedy settlement of the dispute.
c) The Mediator is authorized to end the Mediation whenever, in the judgment of the Mediator, further effort at mediation would not contribute to a resolution of the dispute between the parties.
d) The Mediator may assist the parties in drawing up a Settlement Agreement.
SECTION 6: Role of Counsel.
a) The role of counsel is to give regard and ensure clients' accord respect to notices, invitations and directives from the mediator.
b) Ensure the appearance of his client at every Mediation session.
c) Explore with the client various options available so as to ensure speedy conclusion of the mediation process.
d) Respect the confidentiality of the Mediation session(s).
e) Embrace a cultural change and accept an advisory role while parties take the lead role in Mediation sessions.
f) Be cooperative and encourage his client to be cooperative during Mediation sessions to ensure a speedy resolution of the dispute.
SECTION 7: Role of the Parties.
a) The role of the Parties is to attend all mediation sessions either personally or by a duly authorized representative.
b) Parties are expected to attend the ADR session in good faith without undue requests for adjournments or unwarranted delays.
c) Parties must prepare adequately for an ADR session, be actively involved and be willing to explore various options towards settlement.
d) Respect the confidentiality of the Mediation session(s).
e) Cooperate fully with the mediator and the other party throughout the mediation process to ensure a speedy resolution of the dispute.
SECTION 8: Date, Time and Place of Mediation.
a) An agreed date and time shall be fixed for each mediation session and the mediation shall be held at a convenient location agreeable to the mediator and the parties.
b) The dates fixed by the mediator and the parties for each mediation session shall not exceed ten (10) days from the date of the last mediation session.
c) The mediator shall exercise all due diligence in encouraging the parties to reach a settlement within a maximum of three (3) mediation sessions
SECTION 9: Representation of Parties and Attendance at Meetings.
a) Each party
must be properly represented at every mediation session. Any party who is unable (for any reason whatsoever) to attend or make arrangements to be properly represented at a fixed mediation session must notify the mediator at least 48 hours before the mediation session is scheduled to take place.
b) Failure to comply with this Article attracts a penalty fee per session missed.
c) The parties may be represented by persons of their choice, provided such representatives have the authority which must be in writing to settle the dispute on behalf of the parties.
d) The names and addresses of such persons are to be communicated in writing to all the other parties and to The mediator before the first Mediation Session
SECTION 10: The Mediation Process.
a) The Mediator is authorized to conduct joint and separate meetings with the parties.
b) No formal record or transcript of the mediation will be made without the prior consent of the parties.
c) Each party shall cooperate in good faith with the mediator to advance the mediation as expeditiously as possible.
d) In addition, each party may send to the Mediator and/or bring to the Mediation further documentation which it wishes to disclose in confidence to the
Mediator but not to any other party, clearly stating in writing that such documentation is confidential to the Mediator.
e) At any stage of the Mediation process, the Mediator may request a party to submit to him such additional information as he deems appropriate.
f) If the parties are unable to reach a settlement in the negotiations at the Mediation and if all the parties, or their representatives, so request and the Mediator agrees, the Mediator will produce for the parties a non-binding recommendation on terms of settlement. This will not attempt to anticipate what a court might order but merely set out what the mediator suggests are appropriate settlement terms in all of the circumstances.
g) Endeavors’ shall be made to conclude the mediation within 30 days of the appointment of the mediator; which includes the signing of the Settlement Agreement by the mediator and the parties.
SECTION 11: Confidentiality.
a) Every person involved in the mediation including, in particular the mediator, the parties and their representatives and advisors, any independent experts and any other persons present during the meetings of the parties with the mediator, shall respect the confidentiality of the mediation and will keep confidential and not use (unless otherwise agreed by the parties and the mediator) for any collateral or ulterior purpose:
i) all information, (whether given orally, in writing or otherwise) produced for, or arising in relation to, or in connection with the mediation including the settlement agreement, except in so far as is necessary to implement and enforce any such settlement.
ii) proposals made or views expressed by the Mediator
b) All records, reports or other documents, arising in relation to the Mediation will be without prejudice, privileged and not divulged or admissible as evidence or discoverable in any current or subsequent arbitration, litigation or other proceedings whatsoever except any document or other information which would in any event have been admissible or discoverable in such arbitration or litigation proceedings.
c) None of the parties to the Mediation Agreement will call the Mediator as a witness, consultant, arbitrator or expert in any arbitration, litigation or any other proceedings whatsoever arising from, or in connection with or in relation to the dispute. The Mediator will not voluntarily act in any capacity without the written agreement of the parties.
d) All parties to the Mediation, including the Mediator, are bound by the Confidentiality Agreement even after conclusion of his services as Mediator or after conclusion of the Mediation.
SECTION 12: Settlement Agreement.
a) When it appears to the Mediator that there exist elements of a settlement which would be acceptable to the parties, he formulates terms of a possible settlement and submits them to the parties for their observations. After receiving the observations of the parties, the Mediator may reformulate the terms of a possible settlement in the light of such observations.
b) Each party may, on his own initiative or at the invitation of the Mediator, submit to the Mediator suggestions for the settlement of the dispute.
c) If the parties reach an agreement upon a settlement of the dispute, they will draw up and sign a written Settlement Agreement. Where requested by the parties, the Mediator shall draw up or assist the parties in drawing up the Settlement Agreement.
d) The parties on signing the Settlement Agreement are bound by the terms of the agreement
SECTION 13: Termination.
The Mediation shall be terminated:
a) by the execution of a settlement agreement by the parties;
b) by a written declaration of the Mediator to the effect that further efforts at mediation are no longer worthwhile
SECTION 14: Expenses, Fees and Costs.
a) Parties are required to pay Session Fees before the commencement of the Mediation or as may be agreed by the Mediator.
b) All other incidental expenses shall be borne equally by the parties, unless they agree otherwise.
c) The expenses of witnesses, if any, called by either side shall be paid by the party producing such witnesses.
d) Payment of these fees and expenses will be made to the mediator in accordance with its fee schedule and terms and conditions of service.
SECTION 15: Fees of the Mediator.
The amount and currency of the fees of the mediator and the modalities and timing of their payment shall be fixed by the mediator taking into consideration the amount in dispute, the complexity of the subject matter of the dispute and any other relevant circumstances of the case.
SECTION 16: Privacy.
a) Mediation sessions are private. Other persons may attend only with the permission of the parties and with the consent of the Mediator.
b) There shall be no stenographic or any other record of the Mediation process without the prior consent of the parties.
SECTION 17: Suspension of Running of Limitation Period under the Statute of Limitation.
The parties agree that, to the extent permitted by the applicable law, the running of the limitation period under the statute of Limitation or an equivalent law shall be suspended in relation to the dispute that is the subject matter of the mediation from the date of the commencement of the mediation until the date of the termination of the mediation.
SECTION 18: Waiver of Liability.
Neither the Mediator nor the organisation shall be liable to the Parties for any act or omission in connection with the services provided by them (Mediator/the organisation) in, or in relation to, the Mediation, unless the act or omission is fraudulent or involves willful misconduct in which case only the individual person(s) directly responsible for the fraud or willful misconduct shall bear the consequent liability.