- Osprey Nest shall provide the mediator (“the Mediator”) selected by the Parties to resolve the Dispute.
- The Mediator shall take the following actions:
a) Establish the procedure for the Mediation, including the submission of any documents to the Mediator or between the Parties in advance of the Mediation;
c) Preside over the Mediation;
b) Assist in the preparation of any settlement agreement reached during the Mediation.
- Neither the Mediator nor Osprey Nest nor any of its employees shall act on behalf of any of the Parties in the Dispute.
- The Parties acknowledge that neither the Mediator nor Osprey Nest is acting as their agent with respect to the Dispute, that neither the Mediator nor Osprey Nest will provide legal advice to the Parties, and that no comments made by the Mediator during the Mediation should be construed as legal advice.
- The Parties shall appoint negotiators with sufficient power to resolve or compromise the Dispute during the Mediation. If there are any limitations on the authority of the individuals attending the Mediation on behalf of any of the Parties, they will inform the Mediator as soon as possible and, in any case, prior to the Mediation.
- The Parties shall abide by any orders issued by the Mediator according to paragraph 2 of this Agreement regarding the conduct of the Mediation or the submission of any documents to the Mediator or any other Party prior to the Mediation.
- On the Mediation Date, the Mediator shall mediate the Dispute in the place agreed upon by the Parties or (where applicable) online (“the Mediation”). The Mediation will begin at the time agreed upon by the Parties and will last one day (unless the Parties agree differently) or until either of the Parties or the Mediator terminates it.
- There will be no recording or transcript of the Mediation.
- The Parties will attend the Mediation in order to seek to resolve the Dispute, but no offer, suggestion, or comment made during the Mediation shall constitute a binding offer or agreement unless and until it is committed to writing and signed by all of the Parties.
- If the Parties are unable to achieve an agreement during the Mediation, the Mediator may, if all Parties want it, provide a non-binding proposal on possible conditions of settlement; however, the Mediator is under no duty to do so, even if all Parties request it. Any such suggestion will not constitute legal advice to the Parties nor will it constitute an opinion on what a court or tribunal could order, but will instead spell out the parameters of settlement that the Mediator believes are suitable in all the circumstances.
- Any of the Parties may discontinue the Mediation at any time.
- Regardless of the outcome of the Mediation, the Parties may begin or continue litigation.
Save that, at all times, any settlement agreement shall be confidential except as expressly provided in the settlement agreement itself:
- The Mediation shall be without prejudice and legally privileged, and the Mediator, Osprey Nest, and the Parties must maintain absolute confidentiality and shall not divulge or use for their own purposes any information obtained during the Mediation:
a) The fact that the Mediation is scheduled to occur or has occurred;
b) Any information or documents (whether delivered verbally, in writing, or otherwise) that the Mediator or the Parties acquire or obtain during the Mediation (or as part of any disclosure or submission made pursuant to this Agreement prior to the Mediation);
and the Mediator and Osprey Nest shall keep strictly confidential and shall not disclose to any other Party (unless expressly authorised) any information supplied by any of the Parties during any private session at the Mediation (a session in which not all of the Parties are present), provided, however, that nothing in this Agreement precludes disclosure:
a) By the Parties notifying any court or tribunal of competent jurisdiction (or Arbitrator) that is or becomes seized of the Dispute of the fact that the Mediation is to occur or has occurred;
b) By the Parties to any court or tribunal of competent jurisdiction (or Arbitrator) that is or becomes seized of the Dispute of any documents acquired during the Mediation (or as part of any disclosure or submission made pursuant to this Agreement prior to the Mediation) that would have been disclosed in such proceedings in any event;
c) By the Parties in any case before a court or tribunal of competent jurisdiction to enforce the terms of any settlement agreed during the Mediation to such court or tribunal of the terms of the settlement reached;
d) By either of the Parties, the Mediator, or Osprey Nest to the relevant authority or person, to the extent that such disclosure is required by law;
e) By either of the Parties, the Mediator, or Osprey Nest to the relevant authority or person insofar as they reasonably believe they may face a criminal punishment for failing to make such disclosure;
f) By any of the Parties, the Mediator, or Osprey Nest to the relevant authority or person, if they reasonably believe that failure to reveal the information poses a substantial risk to the life or safety of any person;
g) By the Parties in order to receive legal, professional, or medical advice or insurance from any adviser, insurer, or insurance broker who is subject to a confidentiality requirement.
- The Parties agree not to summon the Mediator or Osprey Nest or any of its employees as a witness, consultant, arbitrator, or expert in any litigation or other process arising out of or in connection with the Dispute or the Mediation.
- At the completion of the Mediation, the Mediator and Osprey Nest shall be entitled to destroy any papers received in connection with the Mediation.
Expenses and Fees
- Unless otherwise agreed, Osprey Nest’s costs shall be in line with Osprey Nest’s advertised fee rates (including VAT) (“the Mediation Fee”).
- The Mediation Fee shall be paid by each Party on the date and time specified by Osprey Nest and, in any case, no later than 4.00pm on the business day preceding the Mediation.
- Subject to article 20 below, each Party must bear their own fees and expenses for attending the Mediation in the absence of an agreement to the contrary. If a fee is charged for the Mediation venue, the Parties shall be equally and severally accountable for the fee and any expenditures incurred at the venue (subject to paragraph 20 below). Unless the Parties agree otherwise (and subject to section 20 below), the Parties will divide all such expenditures equally.
- If any or all of the Parties cancel or reschedule the Mediation Date within four weeks of the Mediation Date (whether or whether the Mediation is subsequently rescheduled), the Parties will each be responsible for 25% of the Mediation Fee (plus VAT) (“the Cancellation Fee”).
- For the avoidance of doubt, nothing in this agreement limits the ability of any court or tribunal that is or becomes seized of the Dispute to make an order regarding the costs of or associated with the Mediation, including specifically regarding the Parties’ responsibility for any Cancellation Fee incurred under clause 19 above.
The Parties shall be entitled to participate in the Mediation with their legal advisors but shall not invite any other person or persons to participate in the Mediation without first obtaining their consent to any Confidentiality Agreement provided by Osprey Nest, such consent to be signified by such person or persons signing and returning to Osprey Nest a copy of such Confidentiality Agreement by 4.00pm on the business day preceding the Mediation. Additionally, the Parties shall use their best efforts to ensure that such person or individuals abide by the Confidentiality Agreement’s requirements.
Protection of Personal Information
- The Parties accept that the Mediator will utilise his or her personal experience, skill, discretion, and intuition in seeking to mediate the Dispute. The Parties further acknowledge that, as a result of the Mediator’s obligation under clause 13 of these terms to keep confidential and not disclose to the other Party the information supplied by each Party in private session during the Mediation, none of the Parties will be aware of the full circumstances under which the Mediator exercises his or her skill, judgement, and intuition, and that the Mediator will be prohibited from disclosing the same by clause 13. As a result, neither the Mediator nor Osprey Nest shall be responsible to the Parties for any act or omission in connection with the services provided under these conditions, unless such act or omission was made in bad faith.
- During any epidemic, pandemic, or other national emergency, the Parties agree to abide by the reasonable provisions of any relevant Osprey Nest Protocol, which is designed to safeguard the safety of people participating in the Mediation.
Legislation and Jurisdiction
- These terms and conditions shall be construed in accordance with English and Welsh law, and the parties thus submit to the non-exclusive jurisdiction of the English and Welsh courts.