Appointment of the Chair
The parties to this agreement appoint Rachel Oakeley (“the mediation style conference chair”) and the chair accepts an appointment to conduct a mediation style conference of the dispute between the parties in accordance with the terms of this agreement (“the agreement”).
Purpose of the Mediation Style Conference
The mediation style conference is an informal process designed to assist parties to resolve matters in issue between them.
If agreement is not reached on all matters, then the chair will assist the parties to:
Obligations of Chair
The chair will fairly and impartially assist the parties to identify and discuss matters in issue between them with the objective of resolving the dispute.
The chair is not acting as a legal practitioner for either or both of the parties. The chair has, and assumes, no duty to the parties to give legal advice of any nature. The chair does not give, and anything said does not constitute the giving of, legal advice or representation to any party. The chair shall not be required by any party or their solicitor(s) to offer legal advice.
Conduct of the Mediation Style Conference
The mediation style conference will be conducted in a manner the chair considers appropriate to an efficient and expeditious resolution of the dispute.
The chair is not required to offer legal advice.
The chair may express opinions and make recommendations.
Any advice offered, opinions expressed or recommendations made is/are of no legal effect and is/are provided subject to the parties obtaining their own independent legal advice in relation to such matters.
The chair may give directions in relation to the conduct of the mediation style conference and each party agrees to comply with any reasonable directions so issued.
The mediation style conference is a voluntary process and the chair will not, and cannot, compel the parties to settle, or even to continue the mediation style conference. Notwithstanding any express term of this agreement, on account of the voluntary nature of the process, the parties or the chair may end the mediation process or the mediation style conference at any time and without giving a reason.
The role of chair is purely to facilitate. The chair’s role is not to adjudicate the dispute between the parties. The chair will not advise a party, make decisions for a party or impose a solution on the parties. The chair is independent and neutral.
Confidentiality and Privilege
The mediation style conference is conducted on a without prejudice basis and all written and oral communications, negotiations and statements made during the mediation style conference will be treated as privileged settlement discussions and are absolutely confidential and will not be disclosed or relied upon or be the subject of a subpoena to give evidence or to produce documents in any subsequent legal proceedings.
The chair will not disclose any information or document provided to him or her on a confidential basis to another party unless he or she is authorised to do so by the party who provided the information or document. There is an exception, namely the chair may make disclosure where the information disclosed suggests an actual or potential threat to human life or safety, or intentional or imminent serious harm to property, or if compelled by law to do so.
There shall be no sound recording or transcript of the mediation style conference. Any transcript which is generated by the video-conferencing platform, if any, will be destroyed by the chair after the mediation.
Each party and their solicitors shall be responsible for ensuring that each party and all of its representatives and advisors are bound by appropriate undertakings and agreements as to confidentiality, and shall take appropriate measures to limit the dissemination of any information relating to the mediation only to those persons as may be present or required for the purposes of the mediation style conference.
No communication or statement made during the course of the mediation style conference shall be relied upon to found or maintain any action for defamation, libel, slander or any other claim or complaint.
Subject to any legal obligation the chair will not disclose any information or document provided to him or her on a confidential basis to another party unless such information or document has already been disclosed by the party to the other party, or the chair is authorised to do so by the party who provided the information or document or required by law.
Each party must make it clear to the chair at all times what information the chair is free to impart to the other party at a time the considered appropriate by the chair, and what information must not be disclosed.
Recording functions shall not be used. The chair confirms that she will not knowingly record any part of the e-mediation for any purpose unless she has the expressed written consent of all parties. The parties have been advised by their lawyers in respect of the relevant sections of the Surveillance Devices Act 1998 (WA).
Each of the parties undertakes not to engage in any form of recording of the mediation and in the event they make any inadvertent recording; they undertake to destroy the recording immediately upon receiving it or becoming aware of having received it, without showing, copying, distributing it to any other person.
Conflict Of Interest
The chair confirms that she has no interest in the dispute, nor has the chair to the best of her knowledge had any prior dealings with any of the parties in relation to the dispute.
If, following appointment pursuant to this agreement, the chair becomes aware of any prior dealings with any of the parties in relation to the dispute, or any circumstances that may create a reasonable perception of bias, partiality or lack of neutrality, the chair shall immediately inform the parties or their solicitors. Either party may thereupon terminate the mediation style conference pursuant to this agreement.
If in the course of the mediation style conference the chair becomes aware of any circumstances that might reasonably be considered to affect the chair’s capacity to act impartially:
Notwithstanding any decision of the parties to continue with the mediation style conference, if the chair forms the view that the chair will be unable to assist the parties to continue the mediation style conference or achieve a resolution of the dispute the chair may terminate the mediation style conference and the chair’s appointment.
Either party may terminate the mediation style conference at any time by giving notice to the chair and to the other party.
The chair may terminate the mediation style conference if the chair determines in his or her sole discretion:
Unless otherwise agreed to in writing, each party agrees to pay one half of the chair’s fees which sum is to be transferred to the held in the Trust Account of their solicitor at least 3 days prior to the conference.
Unless otherwise agreed to in writing, each party agrees to pay one half of the chair’s fees and charges in accordance with this agreement.
To the extent that any party does not make payment of their agreed portion of the chair’s fees and charges in accordance with this agreement in full within 7 days of an invoice being rendered by the chair to that party’s solicitor(s), then each such party’s solicitor(s) shall be personally liable to forthwith pay to the chair that portion of the chair’s fees and charges in accordance with this agreement attributable to their respective client.
The chair shall notify the parties solicitors 7 days prior to the date of the scheduled mediation style conference, or as soon as practicable if there is less than 7 days between the date of execution of this agreement and the date of the scheduled mediation style conference, the estimated fees and charges of the chair up to an including the scheduled mediation style conference. One half of which sum is to be held in the Trust Account of each of the parties’ solicitors no later than the close of business Perth time 3 days prior to the scheduled mediation style conference. Each party’s solicitor shall confirm in writing to the chair no later than the close of business Perth time 3 days prior to the scheduled mediation style conference that they hold one half of such estimated fees and charges in their solicitor’s Trust Account.
Cancellation Fee (at parties' discretion)
The parties each agree that the chair shall be entitled to be paid a fee if the mediation style conference is postponed or cancelled on the following terms:
Exclusion of Liability and Indemnity
The chair is not liable for any act or omission in connection with the mediation style conference or this agreement other than fraud and the parties jointly and severally indemnify the chair in respect of all other liabilities, claims and associated costs arising from the mediation style conference.
The chair makes no representation that any such agreement reached between the parties will equate with any result which might be achieved by a contested trial of the dispute or any part of the dispute.
Any advice, opinions, views and ideas expressed on issues of law or fact, or recommendations made, are of no legal effect and are provided subject to the parties obtaining their own independent legal advice in relation to all such matters, and do not operate to bind the parties or otherwise operate as a determination of any question of law or fact.
The parties should, and are required, to obtain and rely upon their own legal, financial and taxation advice (to the extent necessary), in relation to the dispute, its settlement, resolution or any contemplated agreement, the terms of this mediation style conference agreement, the mediation process, or any other matter of whatsoever nature.
This agreement may consist of and be executed in any number of counterparts, including by facsimile and/or pdf image. All such counterparts together shall be taken, and deemed, to constitute one instrument.
This agreement may also be accepted by conduct. Such conduct being the Solicitor or any director, partner or employee of the Solicitor making a request for the provision, or continued provision, of services or for the chair to undertake, or continue to undertake, the work described in this agreement after the receipt by the Solicitor of this agreement.
Western Australian Law
This agreement, and the mediation style conference, is governed by and is to be construed and interpreted in accordance with the laws in force in the State of Western Australia.
The parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Western Australia and any courts which may hear appeals from those courts in respect of any proceedings in connection with this agreement, and waives any right to object to any proceedings being brought in those courts.