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 Mediation Meeting
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| 6. |
The Mediation Meeting shall take place at: |
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................................................................................................................................. |
The Conduct of the Mediation
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| 7. |
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. |
| 8. |
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. |
| 9. |
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, 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. |
| 10. |
Before the date of the Mediation Meeting, the Mediator shall read
each Summary. |
| 11. |
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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| 12. |
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. |
| 13. |
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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| 14. |
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. |
| 15. |
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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| 16. |
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. |
| 17. |
The
Med-Adjudicator 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 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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| 18. |
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. |
| 19. |
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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| 20. |
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. |
| 21. |
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. |
| 22. |
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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| 23. |
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. |
| 24. |
This Mediation will terminate when:
- a Party informs the 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 Mediator decides at his/her sole discretion that continuing the Mediation is unlikely to
achieve the objective of being cost effective: or
- the Mediator 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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| 25. |
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. |
| 26. |
The
Parties agree that the Med-Adjudicator shall be the person
named in the Contract to act as Adjudicator for the Dispute or for
any part of the Dispute and shall substitute any person previously
named in the Contract. |
| 27. |
The
Parties agree that the Dispute or any part of the Dispute may
be resolved by Adjudication and if the Dispute comprises more than
one dispute consent to it being decided in one adjudication. |
Adjudication Procedure
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| 28. |
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. |
| 29. |
The
Adjudication Procedure which applies to any adjudication of the
Dispute or part of the Dispute shall be as provided under the
Contract or if the Contract does does not comply with the
requirements of Section 108(1) to (4) of the Housing Grants
Construction and Regeneration Act 1996, the adjudication provisions
of the Scheme for Construction Contracts shall apply. |
Interpretation
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| 30. |
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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| 31. |
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. |
| 32. |
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. |
| 33. |
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. |
| 34. |
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
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| 35. |
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
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| 36. |
Each
Party shall be responsible for payment of an equal share of the fees
and expenses of the Med-Adjudicator when acting in the Mediation, save that the Parties are jointly and
severally liable for the whole of said fees and expenses when acting
as Mediator. 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. |
| 37. |
Each
Party shall bear its own costs and expenses of its participation in
this Mediation. |
| 38. |
The
responsibility for the Med-Adjudicator's fees and expenses in the
Adjudication and the Parties costs and expenses in the Adjudication
shall be as stated the provisions of the Adjudication procedure
which apply. |
Law and Jurisdiction
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| 39. |
This
Agreement shall be governed by, construed and take effect in
accordance with, English law. The
courts of England shall have exclusive jurisdiction to settle any
claim, dispute or matter of difference which may arise out of or in
connection with this Agreement. |
| 40. |
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. |
| 41. |
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 Mediation 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. |
