I - SCOPE
These Rules apply when the parties seek an amicable settlement to a dispute through mediation under the auspices of the Centre in accordance with these Rules.
II - DEFINITIONS
"Centre" or "QNICAC": means the Canadian Commercial Arbitration Centre incorporated under Part III of the Québec Companies Act (R.S.Q., ch. C-38) or any person, committee or institution to whom the Centre entrusts the management of mediation affairs;
"Mediator" means a natural person assigned to assisting parties in reaching an amicable settlement of a dispute under the auspices of the Centre in accordance with these Rules. The same term also applies to mediators when the parties elect to entrust the function to several persons.
"Mediation" also includes conciliation and any other designation insofar at the parties accept to abide by these Rules.
"Rules" mean these Rules in their version in force on the date of the mediation.
III - THE CENTRE'S ROLE
1. The general purpose of the Centre is to ensure the enforcement of these Rules and to this end, enjoys all necessary powers to do so.
2. The Centre must act with utmost speed by taking into consideration the parties' interest in seeing an amicable, equitable, rapid and cost-effective settlement of the dispute.
3. The Centre ensures that the parties are treated equally and are given a full opportunity to present their cases.
4. No action may lie against the Centre or the mediator for any act performed in good faith within the exercising of its duties granted under these Rules.
5. The mediator is an independent professional and the Centre is not liable for his or her acts, omissions or neglect.
6. The Centre acts on behalf of the parties when it incurs expenses owing to mediation, at the request of the parties or that of the mediator.
IV - NOTICE OF MEDIATION
1. When the parties have planned on submitting the dispute that may occur between them to mediation under the auspices of the Centre, either one may then request in writing that the Centre initiate the procedure.
The request must identify the dispute and give the parties' names and addresses. The Centre then invites the parties mentioned in the request to submit to mediation.
2. When mediation is not provided by the parties as a means for settling their dispute or the planned mediation is not under the auspices of the Centre and these Rules, one of the parties may in the same manner request that the Centre invite the other parties to consent to mediation under the auspices of the Centre and in accordance with these Rules.
3. If one party refuses to submit to mediation under the auspices of the Centre, he or she must give written notice to the party that made the request of the impossibility of following the matter up.
V - APPOINTMENT OF THE MEDIATOR
1. The Centre invites the parties to appoint a mediator in accordance with the terms set forth in their agreement.
2. If the parties do not agree on the choice of a mediator within the limits prescribed under their agreement, the Centre appoints a single mediator from those among whom it recognizes their qualifications for such type of dispute.
1. To be qualified to act as a mediator, a person must be independent, impartial, available and professionally knowledgeable regarding the subject of the dispute and must maintain such qualification for the entire duration of the mediation.
2. A person approached for a function in mediation and any one to whom such function has been entrusted must immediately inform the Centre and the parties of any reason that could raise doubts concerning his or her qualifications to act.
VI - COMPETENCE OF THE MEDIATOR
Mediation is assumed by a mediator recognized as qualified by the Centre and who has accepted to act under its auspices and in accordance with the Rules.
1. The mediator assists the parties in an independent and impartial manner in their efforts to reach an amicable settlement of the dispute.
2. The mediator is guided by principles of objectivity, fairness and justice, and takes into account among other things the rights and obligations of the parties, practices in the area of commerce being considered and the circumstances surrounding the dispute, including business practices in use between the parties.
The mediator applies and interprets these Rules concerning his or her duties and responsibilities. Any other part of these Rules is interpreted by the Centre.
VII - CONDUCT OF MEDIATION
1. The Centre is seized with the dispute by a notice given by the most expedient party and is accompanied with fees for opening the file.
2. Mediation begins once the Centre has obtained the parties' agreement and the mediator's fees and mediation expenses determined by the Centre have been paid.
The Centre organizes the first meeting between the parties and the mediator. The date and place of subsequent meetings are decided by the mediator after consulting the parties or their representatives.
The parties may be represented or assisted by persons of their choice, providing they give advance notice thereof to the other parties and the mediator.
1. The mediator conducts mediation proceedings as he or she sees fit so as to reach a settlement rapidly, while taking into account the circumstances and desires expressed by the parties.
2. Each party may submit suggestions for settling the dispute to the mediator.
3. The mediator may, at any stage of the proceedings, make proposals for settling the dispute. The proposals need not be made in writing, nor need the reasons therefor be given.
1. The mediator may invite the parties to meet with him or her, or may meet with them separately.
2. When mediation is entrusted to several mediators, they may decide jointly to act together or separately with the parties.
When the mediator receives factual information concerning the dispute, he or she discloses the substance of that information to the other party to allow the latter to present whatever explanation the party deems useful. However, when a party furnishes information to the mediator with the express condition that it must remain confidential, the mediator shall not disclose it to the other party.
The parties shall cooperate in good faith with the mediator and shall especially comply with his or her request to produce written documents, provide evidence or participate in meetings.
The parties agree not to institute arbitral or legal proceedings regarding the subject of the mediation while the mediation is underway, unless such a measure is needed for preserving their rights.
In the event mediation fails, the parties are free to resort to arbitration, or to address courts of law if they are not bound by an arbitration agreement.
VIII - THE TRANSACTION AGREEMENT
1. If an agreement is reached between the parties regarding all or part of the dispute, the mediator sets the terms and then requests that the parties sign it. The mediator then signs the document as a witness.
2. The agreement signed by the parties is a contract of transaction within the meaning of the Civil Code. It binds the parties and puts a definitive end to the dispute of which it is the object.
3. The transaction agreement may provide that any eventual dispute regarding its performance may be submitted to final arbitration without appeal under the auspices of the Centre and in accordance with its Arbitration Rules.
IX - END OF MEDIATION
1. Mediation comes to an end on the date when the Centre receives a copy of:
the transaction agreement signed by the parties; or,
a written statement by the mediator attesting to the failure of the mediation; or,
a written statement by a party putting an end to the mediation.
2. Mediation also ends if the parties neglect to provide a reserve for expenses for the mediator's fees and mediation expenses in accordance with the Centre's requirements and within the deadlines prescribed by it.
X - CONFIDENTIALITY
Mediation is a private procedure that takes place behind closed doors and whose attendance is restricted to those persons invited by a party with the consent of the mediator.
Mediation proceedings are confidential. The mediator, the parties and the Centre, as well as any person who has knowledge of some fact or information issuing from or during the mediation, shall respect its confidential nature.
The mediator shall not be required to provide testimony relating to his or her mediation or to produce documents used therein in arbitral or judiciary proceedings, whether the latter is or is not related to the currently mediated dispute. The mediator may, however, be called upon to provide testimony regarding the contents of the transaction signed by him or her as a witness.
The parties agree to respect the confidential nature of mediation and not to invoke as elements of evidence in arbitral or judicial proceedings
the views expressed or suggestions made by a party regarding a solution to the dispute;
facts admitted to by a party in the course of mediation proceedings;
the fact that a party has indicated it would be amenable to accepting a proposal for settlement advanced by the mediator or another party.
proposals presented by the mediator.
The parties and the mediator promise that the latter shall not perform the duties of an arbitrator, representative or counsel for a party in arbitral or judicial proceedings related to the currently mediated dispute.
XI - MEDIATOR'S FEES AND MEDIATION EXPENSES
Unless there is any agreement to the contrary between the parties, the mediator's fees and mediation expenses are evenly distributed amongst them.
1. Prior to the beginning of the mediation, the Centre requires the parties to provide a reserve for expenses to guarantee payment of the mediator's fees and expected mediation expenses, set in accordance with the schedule appended to these Rules.
Mediation begins once the requested reserve is received by the Centre.
2. During mediation, the Centre may submit to the parties partial statements and request that they provide an additional reserve for expenses to cover same.
3. At the end of the mediation, the Centre transmits the final invoice to the parties and returns to them, if applicable, any unexpended balance after compensating the amount due by each of them.
The reserve for expenses is used to pay mediator fees and mediation expenses. These expenses include:
a) Travel, lodging, subsistence and other direct expenses incurred by the mediator at the time of mediation.
b) Expenses for room rental and other expenses relevant to the holding of mediation proceedings.
c) the Centre's administrative fees; and,
d) expenses to be incurred by the Centre during mediation, including if applicable expenses required by the traveling of its representative when mediation takes place outside the regions of Quebec and Montreal.
Each of the parties directly assumes travel expenses and other indemnities resulting from its witnesses, experts, advocates or other persons representing or assisting the party during mediation.
The mediator's fees for services already rendered and expenses incurred for mediation, including the Centre's administrative fees, are due by the parties even if the mediation ends without the concluding of a transaction agreement, or if it fails in whole or in part.
These Rules come into force on December 3, 1991.