CONFIDENTIAL FAMILY MEDIATION AGREEMENT (for Mediation and Mediation-Arbitration)


 

Between: 

- and-

&

High Park Mediation Ltd. ("High Park" or "HPM")

 

MEDIATOR APPOINTED

  1. The parties appoint as their mediator.


GENERAL TERMS

  1. The mediator has no bias towards either party and has no interest in the outcome. The mediator does not give advice, provide counselling nor make decisions.

  2. This is a confidential process that not covered by solicitor-client privilege.

  3. Mediation is voluntary. A party or mediator may end it any time without explanation.

  4. The mediator may suggest agenda items but it is up to the parties to decide what to mediate.

  5. Only the parties, their lawyers, and the mediator may attend the mediation. Consent of the parties and mediator is required for anyone else to attend. Any such person must sign the confidentiality agreement.

  6. The mediator will document agreements in a Mediation Summary Report (MSR). The MSR is not binding unless it is signed by the parties and witnessed. Independent Legal Advice is strongly recommended.

  7. No party shall include a MSR (or anything arising from the mediation) in any brief before the court or an arbitrator without consent of all parties and the mediator.

  8. Neither party will seek to compel the mediator to produce their file or testify for any reason, including to try to prove that a settlement was reached in mediation.

  9. The parties and mediator will comply with the Use of Technology terms found on the High Park website.

  10. Mediation starts when this Agreement is signed by the parties and the mediator, and ends when any party or the mediator notifies all parties to this Agreement that it has come to an end.

  11. The mediator and High Park shall not be liable for any act or omission in connection with any steps taken pursuant to this agreement, nor for any agreement arising out of it.


CONFIDENTIALITY, WITHOUT PREJUDICE AND EXCEPTIONS

  1. This is closed, confidential, without prejudice mediation. The mediator and parties shall keep in confidence all information and documents prepared, sent or received for the purpose of mediation, including intake forms, MSRs, offers, correspondence and all other communications.

  2. Documents otherwise discoverable in litigation or arbitration are not confidential.

  3. The parties shall not discuss anything said or done during the mediation process with anyone who was not present unless they agree otherwise, except for the purpose of seeking advice on proposed settlements.

  4. The parties shall not record nor transcribe any part of the mediation, nor shall they post information about it on social media, in emails, or in any other way.

  5. The following exceptions to confidentiality apply to the mediator:
  • to communicate and share documents with counsel and third parties retained by one or both parties, in the mediator’s absolute discretion;

  • pursuant to a court order;

  • to report a child in need of protection under s.125 of the Child, Youth and Family Services Act;

  • to advise a court of the fact that a mediation took place;

  • to appropriately respond to a reasonable concern for the immediate safety of a person, persons or animal;

  • if a party or third party makes a claim or complaint against the mediator or High Park, or disputes fees;

  • for research, education, program evaluation and accreditation purposes on a non-identifying basis, or

  • with the written consent of all parties and the mediator.
  1. The common law exception to settlement privilege is expressly waived. No evidence of mediation communications shall be disclosed in any legal proceedings relating to an alleged settlement except for an agreement signed by the parties and witnessed, a Consent Order or an Award incorporating the settlement terms.


INTAKE AND SCREENING PROCEDURES

  1. The mediator will meet each party separately and confidentially (with or without counsel) to assess if the case is appropriate for mediation (“screening”) and to identify the issues, goals and concerns of each party. Screening also occurs throughout the mediation if it proceeds. The intake meeting, including all information and forms provided by each party prior to the intake meeting, and all screening information, is confidential between that party and the mediator, subject to the confidentiality exceptions set out herein.

  2. The mediator may, in their absolute discretion, share information learned or provided as part of intake or ongoing screening with that party’s lawyer.

  3. Intake forms are the property of High Park and will not be shared even with the party that submitted them.

THE MEDIATION

  1. The parties and mediator will meet, by phone, Zoom, email, or other means, as agreed. The number of meetings, their duration and structure will be agreed upon by the parties and the mediator. The mediator may postpone a scheduled mediation and/or withhold their MSR following a mediation until all requested fees have been paid.


PRIVATE MEETINGS WITH A PARTY

  1. The mediator may meet or communicate with either party or their counsel separately at any time in their discretion. Unless agreed otherwise, the mediator may disclose information or documents provided by one party in a private meeting to the other party, in their absolute discretion.


NOT LEGAL SERVICES OR ADVICE

  1. The parties are advised to each seek their own legal, tax and other advice for mediation and on any outcomes of the mediation. Counsel are encouraged to attend mediation. Even though parties may not reach binding settlements in mediation unless they have counsel present for that purpose, they may finalize settlements between themselves afterwards based on their MSR. Any agreement reached without the benefit of legal advice may be invalid, set aside or have other unintended consequences.

  2. Views expressed or legal information given by the mediator do not constitute advice. Documents prepared by the mediator, such as MSRs, draft agreements, support or NFP calculations, are provided on the basis at each party will obtain legal and financial advice on them.


DOCUMENTING OUTCOMES

  1. The parties agree that the mediator will document any tentative agreements reached in mediation in the form of a MSR. The mediator may, if the parties request, also provide a brief summary of any unresolved issues and each party’s position, without comment.

  2. The parties will not conclude a binding agreement in mediation unless they both have counsel present and settlement documents are signed.

  3. At the request of a party, and in the mediator’s discretion, the mediator may prepare a draft separation agreement on the understanding that it will be sent directly to the counsel for the parties.


FINANCIAL AND OTHER DISCLOSURE

  1. The parties shall fully disclose all relevant financial and other information to the mediator and each other. Sworn financial statements shall be provided if requested by the mediator.


THE CHILD’S VOICE

  1. If any children will be affected by the outcome of the mediation, they will have an age-appropriate opportunity to have their voices heard. The mediator and parties will agree on the best way to hear each child’s voice. Options include:

    1. A s. 30 assessment;

    2. Notes and records from a Children’s Aid Society;

    3. A report from or representation by the Office of the Children’s Lawyer;

    4. A Voice of the Child Report by a third party;

    5. An interview with the mediator;

    6. Information from professionals involved with the child; and

    7. Information from the parents and other family members.

  2. Should the parents consent to the mediator interviewing a child, the following applies:

    1. general information and instructions will be shared with the parents, who will be asked to share specific information with the child;

    2. the mediator will explain the process inm a brief meeting with each parent and will agree on the time and place of each of two meetings with the child;

    3. the interviewer will meet twice with the child alone;

    4. the specific content of the meetings shall be confidential between the child and the mediator;

    5. subject to instructions from the child, the mediator will provide an oral report to the parents about the child’s views and preferences;

    6. the information shared during this meeting will be used to help the parents reach informed decisions that will be in the best interests of their children;

    7. the mediator is required to disclose to a Children’s Aid Society any disclosures from the child that give rise to a concern that a child is in need of protection, and to disclose to the police or other appropriate third party information that reasonably leads them to believe that there is an actual or potential threat to human life or safety; and

    8. the mediator is not a compellable witness in any legal proceeding unless so ordered by a court.

  3. The mediator may, in their discretion, provide the parents with a written Report on the child’s views and preferences. This Report will be intended for use in mediation, but may also be used in a subsequent court proceeding on the basis that the mediator may not be called to give evidence about any aspect of the interviews or Report, and their notes and file shall not be produced absent a court order.

  4. Any motion seeking to compel production or evidence from the mediator shall be made on notice to the mediator, and the party seeking same shall pay all of the mediator’s costs at their usual hourly rate in advance.


RISKS OF MEDIATION

  1. There is no guarantee of settlement nor satisfaction in mediation. Good faith is assumed but not guaranteed. Mediation may lead to delay, expense and increased difficulty in subsequent litigation or resolution efforts.

  2. Any applicable limitation periods may not be suspended during mediation.

  3. The mediator cannot guarantee physical safety before, during or following mediation.

  4. Despite best efforts, there is always a risk of loss of confidentiality or a privacy breach given the use of email, online communications and document sharing platforms, and the risks of using technology. The parties authorize High Park and the mediator to use all appropriate or available means notwithstanding any such risks.

  5. Parties are advised to obtain legal advice on these risks and limitations before they agree to mediate.


TERMINATION OF MEDIATION

  1. The mediation is terminated when either party or the mediator confirms in writing that mediation has come to an end.

  2. The parties consent to the destruction of all notes and documents in the file within 60 days of the termination of mediation.


FEES

  1. The parties agree to pay all requested fees /or deposits, in advance, and all cancellation fees, in accordance with the Fee Schedule on the High Park Mediation website. They acknowledge that fees may be increased from time to time and agree to pay any such increased fees as they are charged.

  2. The parties acknowledge that they are jointly and severally liable for any unpaid fees owing to High Park.

 

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Document name: CONFIDENTIAL FAMILY MEDIATION AGREEMENT (for Mediation and Mediation-Arbitration)
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August 14, 2024 2:04 pm ESTCONFIDENTIAL FAMILY MEDIATION AGREEMENT (for Mediation and Mediation-Arbitration) Uploaded by Albert Gaudio - albert@highparkmediation.com IP 185.193.64.251
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