Agreement to Mediate

Court File No.                         











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To: Werner Keller


The parties and their lawyers agree to proceed to mediation with Werner Keller as the mediator pursuant to Ontario’s Rules of Civil Procedure on the following terms:


Role of the Mediator


1.                  The mediator is acting in the role of neutral facilitator and not in the role of lawyer, counselor, therapist, financial advisor or any other professional. The parties take full responsibility for understanding their rights and negotiating the outcomes.


Authority to Settle


2.                  During the mediation process, the parties will address all issues in dispute among any of the parties to the proceeding and will pursue the resolution process actively and in good faith. Each individual party undertakes that, subject to any limits communicated to all parties, he or she has full authority to determine and settle all issues in this proceeding during the mediation. Each corporate party declares that, subject to any limits communicated to all participants prior to the commencement of the mediation, the person(s) attending the mediation on its behalf has (have) full authority to determine and settle all issues in this proceeding on behalf of the corporation during the mediation.




3.                  Except for any written agreement among the parties to the contrary, all oral and written communications in this mediation session are strictly confidential and without prejudice to either party. The contents of the discussion will not be used against either party in the future. The parties agree that:


(a)                statements and documents produced in the mediation session or in pre-session meetings and not otherwise discoverable are not subject to disclosure through discovery or any other process, and are not admissible into evidence for any purpose, including impeaching credibility;


(b)               no person may communicate information obtained through the mediation process or allow any person to communicate or have access to such information except as required for the administration of the mediation;


(c)                the notes, records and recollections of the mediator are confidential and protected from disclosure for all purposes; and


(d)               the mediator may in his sole discretion retain no record of the mediation.


4.                  The mediator will not voluntarily disclose anything that is said or takes place in the mediation except that:


(a)                the mediator may discuss the mediation and information disclosed in it with the parties’ lawyers;


(b)               the mediator may provide any report or summary required to be prepared by her pursuant to the Ontario Mandatory Mediation Program;


(c)                the mediator may disclose non-identifying information for research, statistical, accreditation or educational purposes;


(d)               the mediator may disclose information where ordered to do so by a judicial authority, where required to do so by law, with the written consent of both parties, or where the information conveys an actual or potential threat to human life or safety.


5.                  All relevant information will be fully disclosed to each other by the parties. The mediator may disclose to a party any information provided by the other party which the mediator believes to be relevant to the issues being mediated, unless the party has specifically asked the mediator to keep certain information confidential.


Costs of the Mediation


6.                  For two parties the mediator’s fees are $800.00 plus H.S.T. for the initial one-half hour of preparation per party and a mediation session of up to three hours. For each additional party there is an additional half hour of preparation time at the rate of $200.00 per hour. If all issues have not been settled after the initial 3 hour mediation session and if all parties, their lawyers and the mediator agree to continue the mediation, the mediator’s fee for the continuing mediation will be at the rate of $200.00 per hour plus H. S. T. The parties agree to pay the mediator’s disbursements, including meeting room fees and travel, as applicable. Fees are payable at the end of each session.


7.                  Each party is required to pay an equal share of the mediator’s fees. The parties’ lawyers each agree to be severally liable to pay (on behalf of their client) the mediator’s final account for fees, disbursements and G.S.T. The unrepresented party or parties agree to be severally liable to pay the mediator’s final account for fees, disbursements and H.S.T.


Cancellation Policy


8.                  If a scheduled mediation is cancelled more than 14 days before a session, deposits made are refundable, except to the extent of mediator’s preparation or other time has already been incurred.  Scheduled mediation dates cancelled or rescheduled in less than 14 days will incur cancellation charges based upon a four-hour (1/2 day) for each day or part day reserved unless the time can be scheduled by the mediator for another mediation matter. 


Advance Payment


9.                  The Parties ordinarily each pay a $100 advance deposit payable at the time of booking, as an estimate of time spent for administration for the mediation and disbursements. Larger advances may be required. If the advance account is exhausted prior to the end of the mediation, the Parties may be asked to replenish the account.  The mediator retains the right to suspend the proceedings in the event any invoices are not timely paid. 


Disqualification of Mediator as witness and Exclusion of Liability


10.              The parties agree not to call the mediator as a witness or as an expert in any pending or subsequent litigation or arbitration involving any of the parties to the mediation.  The parties agree that neither they, nor any solicitor acting now, or hereafter, on behalf of any party, will take any steps, or invoke any legal process, for the purpose of compelling the mediator to produce any documents, or testify in any forum, concerning any recollection whatsoever about any document, or utterance produced, or made in connection with, the mediation proceedings, nor give evidence of anything touching any aspect of such proceedings, unless the same is compellable on the grounds entirely independent of, and apart from, the holding of this mediation process.  The parties agree to defend and/or assume the costs and lawyers’ fees of defending the mediator from any subpoenas from third parties arising out of this Agreement or the mediation and will indemnify the mediator from all costs arising out of breach of this agreement.  The parties agree that the mediator will have the same immunity from liability for any act or omission in connection with the mediation as judges have under applicable law.


Termination of the Mediation


11.              Any party or the mediator may terminate the mediation at any time.


Signing Individually


12.              Each party may sign a separate copy of this agreement which shall be an original agreement although not signed by the other parties. A copy received by facsimile transmission shall be acceptable proof of execution. All such separately signed copies shall together constitute evidence of the parties consent to be bound by this agreement.


Consent to this Agreement


13.              Each of us has read this agreement and agrees to proceed with the mediation on these terms.










Lawyer for Plaintiff


Lawyer for Defendant