Representatives and Participants
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| 1. |
Each Party is represented in this
Med-Adjudication by: |
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The First Party:
.................................................................................................................. |
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The Second Party: .................................................................................................................. |
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(Each the Party’s “Representative” and jointly the “Representatives” ) |
| 2. |
In addition to the Representatives, the following will be present at and/or participate in the
Med-Adjudication on behalf of each of the Parties: |
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The First Party: .................................................................................................................. |
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The Second Party: .................................................................................................................. |
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(Each the Party’s “Participant” and jointly the “Participants” ) |
| 3. |
Each Party’s Representative acts for and on behalf and has the authority to settle the Dispute on behalf of the Party he/she represents. |
| 4. |
Each Party’s Representative agrees to be bound by the provisions of this Agreement and does so on its own behalf, on behalf of the Party he/she represents and on behalf of that Party’s Participant(s). |
| 5. |
A Party shall notify both the other Party and the
Med-Adjudicator immediately on any change to the above. |
Place of Med-Adjudication
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| 6. |
The place of the Med-Adjudication
is: |
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................................................................................................................................. |
Reckoning of Days
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| 7. |
Where under this Agreement an act is required to
be done within a specified period of days or from a specified date, the period
shall begin immediately after that date. Where the period would include a day which is a day which under applicable legislation of the place of the Med-Adjudication is a bank holiday (a “Public
Holiday”) that day shall be excluded. |
Replacement of Med-Adjudicator
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| 8. |
If the Med-Adjudicator becomes ill or becomes
unavailable for some other cause and is thus unable to act on the Dispute
referred to him he shall immediately give notice to the Parties to such effect,
so far as he is capable of so doing. |
| 9. |
If the
Med-Adjudicator dies or becomes ill or is unavailable for some other cause and
is thus unable to act on the Dispute referred to him, the Parties may either agree upon an individual to replace the
Med-Adjudicator or the First Party shall nominate a replacement from those
named or referred to in a list in the Contract as replacement Med-Adjudicator
to act on the Dispute. The replacement Med-Adjudicator shall decide not only that dispute or difference but all
further disputes or differences referred in accordance with this Agreement,
subject always to further replacement in accordance with this Clause. Provided that
- any agreement by the Parties on the
appointment of a replacement Med-Adjudicator must be reached with the object of
securing the appointment of, and the referral of the dispute or difference to,
the replacement Med-Adjudicator within 7 days of the Parties first becoming
aware that the Med-Adjudicator is unable to act;
- any nomination by the First Party must
be made with the object of securing appointment of, and the referral of the dispute
or difference to, the replacement Med-Adjudicator within 7 days
of the Parties first becoming aware that the Med-Adjudicator is unable to act;
- upon selection of the replacement
Med-Adjudicator the Parties shall thereupon execute with the replacement
Med-Adjudicator a revised Med-Adjudication Agreement in the form of this
Agreement.
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Place of Mediation Meeting
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| 10. |
The Mediation Meeting shall take place at: |
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................................................................................................................................. |
The Conduct of the Mediation
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| 11. |
Each
Party shall within two days of the appointment of the Med-Adjudicator submit to the
Med-Adjudicator and to the other Party a
concise summary (the “Summary”) of its view of the Dispute and all
relevant documents to which the Summary refers. |
| 12. |
The
Med-Adjudicator and the Parties shall agree the date and place for the Mediation
Meeting. The Parties shall be responsible for the costs of the place of mediation including but not limited to room charges, communication and other
facilities and refreshments. |
| 13. |
Each
Party shall, in advance of the meeting, inform the Med-Adjudicator and the other
Party in writing of the name of its representative for the mediation part of
the Med-Adjudication (the "Mediation"), who
shall have full authority to act on behalf of that Party and the names of
any other persons who will attend the Mediation Meeting. |
| 14. |
Before the date of the Mediation Meeting, the Mediator shall read
each Summary. |
| 15. |
At the place of the Mediation
Meeting, the Mediator shall chair and determine the procedure of the Mediation. |
Status of Information in the
Mediation
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| 16. |
The Parties understand and
agree that the process of Mediation adopted in this Med-Adjudication
is not confidential as between the Med-Adjudicator and the Parties. Although
this Mediation process is adopted
to achieve a settlement of the Dispute by written agreement, the
process insofar as and to the extent that it involves the Med-Adjudicator is not considered settlement negotiations for
any purposes. |
| 17. |
The Med-Adjudicator, the Parties, the
Representatives and the Participants understand and agree that all
the following will not be kept confidential from the Parties and may
be referred to by the Med-Adjudicator if required to act as
adjudicator in any dispute whether under this Agreement, relating to the Dispute or otherwise arising out
of the Works
- all communications and information (whether given orally, in writing or otherwise) disclosed
to the Med-Adjudicator for, during, or as a result of
this Mediation, and
- all discussions between the
Med-Adjudicator and either individually or together the Parties,
the Representatives and the Participants in the course of this Mediation, and
- all consultations by the
Med-Adjudicator in relation to the Mediation, and
- all the Med-Adjudicator's oral or written communications with the
Parties, Participants and Representatives in this Mediation in a
continuing effort to resolve the Dispute.
(the "Mediation Information")
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| 18. |
Any
Mediation Information shall not be privileged and shall be
admissible as evidence and is not prevented from being produced in any
litigation, arbitration, adjudication or other proceedings whether
relating to the Dispute or otherwise arising out of the Works,
solely by reason of its introduction or
use in this Mediation. |
| 19. |
If
one Party discloses information only to the Med-Adjudicator, the Med-Adjudicator shall give
to the absent Party a complete and accurate account of
what has taken place. The Party disclosing information shall
provide copies of any written information to the absent Party. |
Investigation and Enquiries During Mediation
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| 20. |
The
Parties have appointed the Med-Adjudicator to act in the Mediation
to discuss the respective positions of the Parties on each of the
issues constituting the Dispute and to provide them with his written
view on each issue (together the "Views"). The
Med-Adjudicator shall state with the issue of the last View that he
has given a View on all the issues in the Dispute and shall issue
the Views within 10 days of the date of this Agreement. The
aim of the Parties in adopting this Mediation process is to allow
the Parties thereafter to agree and settle between them as many of
the issues as possible. Other than the Views, the
Med-Adjudicator shall not issue to the Parties, Representatives or the
Participants either orally or in writing a report, assessment,
evaluation, decision, recommendation, opinion or finding of any kind
concerning the issues, this Mediation or the Dispute. |
| 21. |
The
Med-Adjudicator as mediator shall meet with the appointed representatives of the
Parties and discuss the respective positions of the Parties on each
issue. The Med-Adjudicator shall then decide how to proceed in
the Mediation on
each issue including any of the following:
- request the Parties to provide
evidence and/or argument in respect of any issue;
- indicate to the Parties that he
considers that he is able to make a concluded view on an issue and
invite the Parties to state whether there are particular matters
which they wish him to consider before issuing the concluded view;
- indicate to the Parties that he
considers he is able to make a provisional view on an issue, stating
the matters which remain to be resolved and whether they involve
contractual/legal issues and/or factual issues and invite the
Parties to state whether there are particular matters which they
wish him to consider before issuing the provisional view;
- issue the Views stating for each
issue whether it is a Concluded View or a Provisional View and
stating the facts and law he has based his view upon and in the
case of a provisional view the matters which remain to be resolved
and whether they involve contractual/legal issues and/or factual
issues.
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| 22. |
The
Parties agree that the Views shall have no legal effect and are not
binding on the Parties nor the Med-Adjudicator except and to the
extent that they are incorporated in the Settlement Agreement or in
the decision of the Med-Adjudicator as adjudicator. The
Parties understand and agree that any Concluded View issued by the
Med-Adjudicator during this Mediation may be incorporated into the
decision of the Med-Adjudicator as adjudicator and that when
preparing his decision the Med-Adjudicator has the right to modify
and/or elaborate any such Concluded View in the light of the
totality of the evidence and the submissions of the Parties in the
Adjudication. |
| 23. |
Other
than the Views, neither
the Med-Adjudicator, the Parties, the Representatives nor the
Participants may submit either orally or in writing a report,
assessment, evaluation, decision, recommendation, opinion or finding
of any kind of the Med-Adjudicator concerning this Mediation to any court, arbitrator,
adjudicator or other legal tribunal whether relating to the Dispute
or otherwise arising out of the Works. |
The Settlement Agreement
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| 24. |
Any
settlement, of the whole or of part of the Dispute, reached in this
Mediation will not be legally binding until it has been reduced to
writing and signed by, or on behalf of, the Parties. |
| 25. |
The
Med-Adjudicator shall, if so requested by the Parties, assist them to
prepare the settlement agreement, but the Parties shall have the
agreement independently reviewed by its own legal advisors before
executing the settlement agreement. |
| 26. |
If
the Med-Adjudicator signs the settlement agreement, he/she shall only sign
as a witness and not as a party to the settlement agreement. |
Termination of Mediation
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| 27. |
This
Mediation may be terminated at any time without any adverse
reflection or comment by the Parties and/or the Med-Adjudicator in
any subsequent adjudication. |
| 28. |
This Mediation will terminate when:
- a Party informs the Med-Adjudicator
as mediator that it withdraws from the Mediation; or
- a period of 10 calendar days after
the date of this Agreement: or
- the Med-Adjudicator has issued a
View for each of the issues in the Dispute and for this purpose
the Parties agree that a
statement by the Med-Adjudicator on issue of a View that he has
done so is conclusive; or
- a written settlement agreement is executed which fully resolves the Dispute; or
- the Med-Adjudicator decides at his/her sole discretion that continuing the Mediation is unlikely to
achieve the objective of being cost effective: or
- the Med-Adjudicator decides at his/her sole discretion that one Party is not acting in good
faith; or
- after the date of this Agreement a
Party issues a notice of intention to refer a dispute under the
Contract to adjudication.
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Commencement of Adjudication
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| 29. |
The
Parties understand and agree that the issue of the Summary by each
Party is not a notice of intention to commence adjudication nor a
submission in adjudication and that a separate notice is required to
commence adjudication. |
| 30. |
The
Parties agree that the Med-Adjudicator shall act as adjudicator for the Dispute or for
any part of the Dispute and shall substitute any person previously
named in the Contract. |
| 31. |
The
Parties agree that the Dispute or any part of the Dispute may
be resolved by adjudication in this Med-Adjudication and if the Dispute comprises more than
one dispute consent to it being decided in one adjudication. |
Adjudication Procedure
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| 32. |
The
Party which requires the Dispute or part of the Dispute to be
referred to adjudication shall serve the Notice of Intention to
Refer on the other Party by pre-paid post, addressed to the other
Party’s address in this Agreement. |
| 33. |
Within 7 days from the date of the Notice of
Intention to Refer the Party giving the notice of intention shall refer the
dispute or difference to the Med-Adjudicator for his decision as adjudicator
(the “Referral”). The Referral shall
include particulars of the dispute or difference together with a summary of the
contentions on which the Party relies, a statement of the relief or remedy that
is sought and any material the Party wishes the Med-Adjudicator to consider as
adjudicator. The Referral shall be copied simultaneously to the other Party. |
| 34. |
The referral by a Party to the
Med-Adjudicator as adjudicator and the copies thereof to be provided to the
other Party shall be given by actual delivery or by FAX or by registered post
or recorded delivery. If given by FAX then, for record purposes, the Referral
must forthwith be sent by first class post or given by actual delivery. If
sent by register post or recorded delivery the Referral shall subject to
proof to the contrary, be deemed to have been received 48 hours after the
date of posting subject to the exclusion of any Public Holiday.
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| 35. |
The Med-Adjudicator shall immediately upon
receipt of the Referral confirm the date of that receipt to the Parties. |
| 36. |
The Party not making the Referral may, by the
same means stated in Article 34 of this Agreement, send to the Med-Adjudicator
within 7 days of the date of the Referral with a copy to the other Party, a
written statement of the contentions on which he relies and any material he
wishes the Med-Adjudicator to consider. |
| 37. |
The Med-Adjudicator shall within 28 days of his
receipt of the Referral reach his decision as adjudicator and forthwith send
that decision in writing to the Parties. |
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Provided that the Party who has made the
Referral may consent to allowing the Med-Adjudicator to extend the period of 28
days by up to 14 days; and that by agreement between the Parties after the
Referral has been made a longer period than 28 days may be notified jointly by
the Parties to the Med-Adjudicator within which to reach his decision as
adjudicator. |
| 38. |
The Med-Adjudicator shall give reasons for his
decision as adjudicator. |
| 39. |
The decision of the Med-Adjudicator as
adjudicator (the "Decision") shall be binding on the Parties and the Parties shall comply with
the Decision and shall ensure that the Decision of the
Med-Adjudicator is given full effect as conclusive and binding under the terms
of the Contract until the dispute is finally determined by legal proceedings,
by arbitration (if the Contract provides for arbitration or the parties
otherwise agree to arbitration) or by agreement. |
| 40. |
If either Party does not comply with the
Decision the other Party shall be
entitled to take legal proceedings to secure such compliance. |
| 41. |
Any failure by either Party to comply with any
requirement of the Med-Adjudicator under Article 42 or with any provision in or
requirement under this Agreement shall not invalidate the Decision. |
| 42. |
In reaching his decision as
adjudicator the Med-Adjudicator shall act impartially, set his own procedure
and at his absolute discretion may take the initiative in ascertaining the
facts and the law as he considers necessary in respect of the Referral which
may include the following:
- using his own knowledge and/or experience;
- determining whether a contract exists between the Parties;
- opening up, reviewing and revising any
certificate, opinion, decision, requirement or notice issued given or made
under any contract between the Parties as if no such certificate, opinion,
decision, requirement or notice had been issued given or made;
- requiring from the Parties further
information than that contained in the Referral or in any written statement
provided by the Parties including the results of any tests that have been made
or of any opening up;
- visiting the site of the works or any
workshop where work is being or has been prepared;
- obtaining such information as he
considers necessary from any employee or representative of the Parties provided
that before obtaining information from an employee of a Party he has given
prior notice to that Party;
- obtaining from others such information
and advice as he considers necessary on technical and on legal matters subject
to giving prior notice to the Parties together with a statement or estimate of
the cost involved;
- having regard to any term of any
contract between the Parties relating to the payment of interest deciding the
circumstances in which or the period for which a simple rate of interest shall
be paid.
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Status of Adjudicator's Decision
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| 43. |
The Parties
agree and acknowledge that the Med-Adjudicator when acting as
adjudicator does not act as an arbitrator and the reference to
adjudication is not a submission to arbitration within the meaning
of the relevant arbitration legislation of the place of
Med-Adjudication. The Parties agree and acknowledge that the
Decision is a decision made under the Contract as part of the
contractual machinery and shall be conclusive evidence only if and
to the extent that the Parties expressly agree in writing. |
Termination of the Adjudication
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| 44. |
The Parties jointly may:
- terminate this Agreement at any time on written notice to the Med-Adjudicator;
- terminate an adjudication part of this
Med-Adjudication at any time and immediately give written notice to the
Med-Adjudicator thereof.
Following
such termination the Parties shall, subject to Article 45, pay the
Med-Adjudicator his fee or any balance thereof and his expenses reasonably
incurred prior to the termination. |
| 45. |
When the decision of the Parties to terminate
the Adjudication Agreement under Article 43 is because of a failure by the
Med-Adjudicator to give his decision on the dispute or difference within the
time-scales in this Agreement or at all, the Med-Adjudicator shall not be
entitled to recover from the Parties his fee and expenses for the adjudication. |
Interpretation
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| 46. |
This Agreement shall be interpreted and applied in the manner most conducive to the efficient conduct of the proceedings with the primary objective of achieving a settlement of the Dispute by written agreement between the Parties as quickly as possible. |
Other Proceedings
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| 47. |
The
Med-Adjudicator shall not be called as a witness at any litigation,
arbitration, adjudication or other proceedings whether relating to
the Dispute or otherwise arising out of the Works. |
| 48. |
The
Med-Adjudicator shall not represent and/or advise any Party or any
Representative or any Participant in any proceedings whether
relating to the Dispute or otherwise arising out of the Works. |
| 49. |
Unless
agreed by the Parties, the Med-Adjudicator shall not be appointed arbitrator in any
proceedings whether relating to the Dispute or otherwise arising out
of the Works. |
| 50. |
Any
litigation, arbitration or adjudication in relation to the Dispute
may be commenced or continued notwithstanding this Med-Adjudication unless
the Parties agree otherwise. |
Confidentiality
|
| 51. |
The Parties and the
Med-Adjudicator shall at all times maintain the confidentiality of
the Med-Adjudication subject to consent of the other Parties which
will not be unreasonably withheld. |
Med-Adjudicator’s Fees and Legal Expenses
|
| 52. |
Each
Party shall be responsible for payment of the fees and expenses of the
Med-Adjudicator as follows:
- when acting as mediator, each party is responsible in equal share
- when acting as
adjudicator, each party is responsible for the share as decided by the
Med-Adjudicator in his Decision
Save
that the Parties are jointly and severally liable for the whole of said fees
and expenses. If any Party fails to make the payment due from him, the other
Party may pay the sum to the Med-Adjudicator and recover the amount from the
defaulting Party as a debt due. Payment of the said fees and expenses will be made in
accordance with the attached Fee
Schedule. |
| 53. |
Each
Party shall bear its own costs and expenses of its participation in
this Mediation. |
Law and Jurisdiction
|
| 54. |
This
Agreement shall be governed by, construed and take effect in
accordance with the law of the Contract. |
| 55. |
The
Med-Adjudicator does not act as as advocate for
any Party. The Parties
agree and accept that the Med-Adjudicator's statements, including
the Views, are not legal advice
to any Party. |
| 56. |
The
Med-Adjudicator shall not be liable to the Parties or any person claiming
through them for any matter arising out of or in connection with
this Med-Adjudication or the way in which it is or has been conducted, and
the Parties shall not bring or allow to be brought on its behalf any
such claims against the Med-Adjudicator. |