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The Nitty Gritty

Mediation

Who attends the mediation?
  • Those with authority to settle.
  • Those with knowledge about the dispute. 
  • Counsel.
What type of mediation brief should be submitted?
  • A concise mediation brief of no more than 20 double-spaced pages with standard 12-point font best serves all the parties’ interests.
  • The essential issues and events involved in a typical, two-party one day mediation can be set out in such a mediation brief. 
  • mediation briefs should contain any important documents.
What is included in a mediation brief?
  • Outline of the facts.
  • List of the issues in dispute/to be decided.
  • Timeline/chronology of the dispute.
  • Cast of characters and explanation of how they relate to the matter.
  • Relevant expert reports, if any.
  • Legal arguments in support of position, supported by relevant and important case law.
  • Each party’s understanding of the other party’s argument.
  • Suggestions as to how the dispute could be resolved.
  • A summary of any settlement discussion held prior to the mediation.
  • Relevant and essential documents.
  • Witness ‘will say’ statements, if any. 
  • mediation briefs should be exchanged between the parties and a copy should be delivered to Dempsey ADR Services Inc., at least fourteen days before the mediation date.
Are there deadlines?

Filing Deadlines

  • Once the parties agree to the date and time of the mediation, the mediator will set a submission deadline for the exchange and delivery of materials.
  • Unlike a court proceeding, the parties must exchange materials and deliver them to the mediator before the close of business (4:30 p.m.) on the date specified in the mediation Agreement.
  • To ensure that the mediator has sufficient time to prepare, the filing deadline must be met.
  • If materials are filed after the deadline there is no guarantee that they will be read prior to the mediation.

 

End of Day Deadline

  • During the mediation itself, an end of day deadline of 4:30 p.m. will be honoured.
  • The pressure of a hard deadline aids the parties to focus on solutions rather than position-based combat.
  • The end of day deadline also ensures that parties are put into a position to make decisions when they are exhausted or frustrated.
  • The end of day deadline is not meant and will not be used to pressure any party into agreeing. 
  • The end of day deadline diminishes cost overruns.
When does the mediation start?
  • Full-day mediations start at 10:00 a.m., unless otherwise agreed and end at 4:30 p.m., unless otherwise agreed.
  • Half-day mediations start either at 10:00 a.m. or 2:00 p.m., unless otherwise agreed.
How much does mediation cost?
  • The ultimate costs associated with mediation vary depending upon the nature and complexity of the matter in question, the number of parties, the amount of time required to review the material and the number of days required.  As such, fees are subject to agreement in advance of mediation and are set out in the mediation agreement. So, no surprises.
  • Typically, the parties agree on a daily rate which includes three hours of preparation and seven hours of mediation.  Where preparation beyond three hours per day of mediation is needed, the parties will be charged an hourly rate for each hour beyond the three hours.  As with the daily rate, the hourly rate will be agreed upon in advance and set out in the mediation agreement.
  • Additional preparation fees can be minimized by providing a high-level overview and a detailed cast of characters document for the mediator to review.  As well, highlighting all material filed with the mediation briefs assists to reduce preparation time.
  • mediation briefs materials that exceed the agreed upon limits will require additional time to read and digest, which, in turn, attracts additional fees.
  • Where a mediation goes beyond a seven-hour day, the parties will be charged an hourly rate for each hour thereafter.  As with the daily rate, the hourly rate will be agreed upon in advance and set out in the mediation agreement.
Who pays for the mediation?
  • The parties and their lawyers are responsible for the payment of all fees and disbursements related to the mediation process.
  • The parties will pay the applicable fees and disbursements of Dempsey ADR Services as set out on the mediation Agreement/Confirmation Letter. 
  • The parties and their lawyers share the responsibility for payment of any account rendered by Dempsey ADR Services on a joint and several liability basis. 
  • The parties are, of course, free to agree between themselves on how the Dempsey ADR Services’ account will be paid, however they will remain jointly and severally liable to Dempsey ADR Services for the entire account if the account is not paid in full. 
Do the Rules of Evidence apply?
  • No, the application of the Rules of Evidence would frustrate.
Do the Rules of Civil Procedure apply in a mediation?
  • Not bound by them, but the parties may agree to adopt some of the Rules.
Where does the mediation take place?
  • For in-person mediations, at their expense, the parties are responsible for securing a location or suitable venue.  In most jurisdictions in Canada, the United States and the United Kingdom, court reporting services also arrange for mediations.  Other locations may include conference facilities, law offices and hotels.  
  • For virtual mediations, unless otherwise agreed by the parties, the Zoom account of Dempsey ADR Services Inc. will be used to conduct mediations.
What happens if the mediation is cancelled?
  • If a scheduled mediation is cancelled, adjourned, or postponed, by any party, that party must notify Dempsey ADR Services Inc., of the cancellation in writing. 
  • If a mediation is cancelled, adjourned, or postponed 30 days or more prior to the date for the scheduled mediation, no cancellation fee will apply.
  • If a mediation is cancelled, adjourned, or postponed less than 30 days prior to the scheduled date for the mediation (but more than two weeks from the scheduled date of the mediation), the cancellation fee will be half of the mediator’s per diem fee plus HST for the mediation, plus all non-refundable disbursements.
  • If a mediation is cancelled, adjourned, or postponed within two weeks of the scheduled date of the mediation, the cancellation fee will be the mediator’s full per diem fee plus HST for the mediation, plus all non-refundable disbursements.
  • Cancellation fees are due and payable immediately upon the cancellation, adjournment. or postponement of the mediation. 
  • If the mediator books other remunerative work on the date that the mediation was scheduled to occur, Dempsey ADR Services Inc., will refund half of the cancellation fee to the parties. 
  • If a mediation is cancelled, each party will be responsible for an equal portion of the mediation fee unless the parties agree otherwise.
  • Essentially mediation is about talking and listening.
  • At the outset of the mediation the parties will have joint session where the mediator will conduct a neutral review of the materials and frame the issues to create a baseline of agreed upon ground rules.
  • Following the review session, the parties will be assigned a separate room where the mediator will meet with them and discuss the dispute, explore their interests and those of the other parties with cooperation of the parties, help find their solution. 
  • The process is designed to minimize the common practice of combative presentation that inflames rather than informs.  It is not meant to silence parties or their counsel.
Why does the per diem fee increase for multi-party mediations?
  • The task of mediating a dispute between two parties is quite a different task than mediating a two-party dispute.
  • Mediating disputes involving three or more parties is not the equivalent exercise as mediating between two parties.
  • Typically, multiple party disputes are more complex because of the number of parties involved and the number of issues. 
  • Mediating such disputes is necessarily more complex because it takes the mediator more time to review the documentation of the various parties, as well as increasing the time needed during the mediation itself to interact with the parties. 
  • Finally, multiple parties mean multiple personality types and that, in and of itself, makes the process more time consuming.
Accommodations?
  • For in person mediations, a plenary meeting room large enough to comfortably accommodate all attendees and equipped with a projector and computer for power-point presentations and/or evidence projection is required. Also, sufficient, and nearby break-out rooms are needed, understanding that the plenary meeting room may also be used as a break-out room. All rooms must be equipped with flip charts and markers. Refreshments throughout the day and a working lunch should be provided. 
  • It is a requirement that an early intake or conference call between the mediator and counsel to confirm such arrangements, particularly for matters involving multiple parties.
Are there any additional fees?
  • For out-of-town mediations, there will be an additional charge for travel time, meals, transportation costs, and accommodation.
Is mediation confidential?
  • Yes.  Confidentiality is an essential element to a successful mediation. 
  • Parties to a mediation must be able to engage in a frank exchange Participants to a mediation must be able to rely on the confidentiality of the process if they are going to be candid with the mediator about their settlement positions, pressure points, litigation strategy and other sensitive issues. 
Is mediation without prejudice?
  • All communications made as part of a mediation, including pre-mediation conferences, are made on a without prejudice basis.
Is the Mediator Compellable?
  • Neither the mediator nor any of Dempsey ADR Services’ employees will be compelled to appear as a witness or expert in any proceeding involving any one or more of the parties or relating in any way to the subject matter of the mediation.
Mediator’s Immunity
  • Dempsey ADR Services and any employee, agent, and subcontractor including the mediator, shall not be liable to any party or representative for any act or omission in connection with any mediation. 
  • The mediator shall have the same immunity as that granted to a Superior Court Judge of the location where the mediation is conducted and where the mediator is domiciled.
Can a mediation be done virtually?
  • Dempsey ADR Services offers virtual mediations.  Virtual mediations are a cost-effective and environmentally sound way to resolve disputes. 
  • Parties need only have access to a stable internet connection, a computer, smartphone or tablet and a web camera.
  • Dempsey ADR Services uses the ZOOM platform, however other video conference systems are equally acceptable.

Arbitration

When is Arbitration appropriate?
  • In situations where an arbitration agreement/clause exists in a contract out of which a specific dispute arises.
  • Situations where parties involved in a dispute elect to resolve their dispute through arbitration even though no prior arbitration agreement or requirement exists. 
  • Where a statute imposes an obligation to arbitrate.
Who attends Arbitration?
  • The parties.
  • Counsel.
  • Witnesses.
What type of documentation should be submitted?
  • A Statement of Claim that sets out: 
    1. the material facts supporting the claim;
    2. the grounds, including applicable law, that support the claim; 
    3. the issues in dispute; and,
    4. the relief or remedy the claimant is seeking. 
  •  A Statement of Defence and any Counterclaim to the claimant that sets out:
    1. the material facts supporting the defence or counterclaim;
    2. the grounds, including applicable law, that support the defence and/or counterclaim;
    3. the issues in dispute; and, 
    4. the relief or remedy the defendant is seeking.
  • A list of and electronic copies of all Documents referred in the Statement of Claim, Statement of Defence and, if applicable, Counterclaim.
  • A list of and electronic copies of all Expert Reports either party intends to rely on.
  • A list of and electronic copies of all Witness Statements, Affidavits or ‘Will Say’ Statements that either party intends to rely on.
When does the Arbitration start?
  • Full-day arbitrations start at 10:00 a.m., unless otherwise agreed and end at 4:30 p.m., unless otherwise agreed. 
  • Half-day arbitrations start either at 10:00 a.m. or 2:00 p.m., unless otherwise agreed.
Are there deadlines?
  • Once the parties agree to the date and time of the Arbitration, the Arbitrator/Arbitration Panel will set a submission deadline for the exchange and delivery of materials.
  • Unlike a court proceeding, the parties must exchange materials and deliver them to the Arbitrator/Arbitration Panel before the close of business (4:30 p.m.) on the date specified in the Arbitration Agreement.
  • To ensure that the Arbitrator/Arbitration Panel has sufficient time to prepare, the filing deadline must be met. 
  • If materials are filed after the deadline there is no guarantee that they will be read prior to the Arbitration.
Do the Rules of Evidence apply in an Arbitration?
  • If an Arbitration is governed by laws of Ontario, then the Ontario Rules of evidence apply.  However, usually such rules are relaxed during Arbitration
  • Ultimately, the parties bear the burden of proving the facts on which they rely to support their claim or defence.  
  • The arbitrator or arbitration panel, in their sole discretion, will determine the admissibility, relevance, materiality, and weight of the evidence offered.
Do the Rules of Civil Procedure apply?
  • Arbitration Agreements are typically founded on the Rules of Civil Procedure (of the jurisdiction in which the arbitration takes or the applicable law as agreed to by the parties) but allow the parties to select which part of the Rules will apply to the arbitration and to tailor procedures where the situation warrants.
How much does Arbitration cost?
  • The ultimate costs associated with arbitration vary depending upon the nature and complexity of the matter in question, the number of parties, the amount of time required to review the material and the number of days required.  As such, fees are subject to agreement in advance of arbitration and are set out in the arbitration agreement. So, no surprises.
  • Typically, the parties agree on a daily rate which includes three hours of preparation and seven hours of arbitration.  Where preparation beyond three hours per day of arbitration is needed, the parties will be charged an hourly rate for each hour beyond the three hours.  As with the daily rate, the hourly rate will be agreed upon in advance and set out in the arbitration agreement.
  • Additional preparation fees can be minimized by providing a high-level overview and a cast of characters document for the mediator to review.  As well, highlighting all material filed with the arbitration briefs assists to reduce preparation time.
  • Arbitration briefs materials that exceed the agreed upon limits will require additional time to read and digest, which, in turn, attracts additional fees.
  • Where an arbitration goes beyond a seven-hour day, the parties will be charged an hourly rate for each hour thereafter.  As with the daily rate, the hourly rate will be agreed upon in advance and set out in the arbitration agreement.
Where does the Arbitration take place?
  • For in-person arbitrations, at their expense, the parties are responsible for securing a location or suitable venue.  In most jurisdictions in Canada, the United States and the United Kingdom, court reporting services also arrange for arbitrations.  Other locations may include conference facilities, law offices and hotels.  
  • For virtual arbitrations, unless otherwise agreed by the parties, the Zoom account of Dempsey ADR Services Inc. will be used to conduct arbitrations.  
What happens if the Arbitration is cancelled?
  • If a scheduled arbitration is cancelled, adjourned, or postponed, by any party, that party must notify Dempsey ADR Services Inc., of the cancellation in writing. 
  • If an arbitration is cancelled, adjourned, or postponed 30 days or more prior to the date for the scheduled arbitration, no cancellation fee will apply.
  • If an arbitration is cancelled, adjourned, or postponed less than 30 days prior to the scheduled date for the arbitration (but more than two weeks from the scheduled date of the arbitration), the cancellation fee will be half of the mediator’s per diem fee plus HST for the arbitration, plus all non-refundable disbursements.
  • If an arbitration is cancelled, adjourned, or postponed within two weeks of the scheduled date of the arbitration, the cancellation fee will be the mediator’s full per diem fee plus HST for the arbitration, plus all non-refundable disbursements.
  • Cancellation fees are due and payable immediately upon the cancellation, adjournment. or postponement of the arbitration. 
  • If the mediator books other remunerative work on the date that the arbitration was scheduled to occur, Dempsey ADR Services Inc., will refund half of the cancellation fee to the parties. 
  • If an arbitration is cancelled, each party will be responsible for an equal portion of the arbitration fee unless the parties agree otherwise.
Accommodations?
  • For in person arbitrations, a plenary meeting room large enough to comfortably accommodate all attendees and equipped with a projector and computer for power-point presentations and/or evidence projection is required. Also, sufficient, and nearby break-out rooms are needed, understanding that the plenary meeting room may also be used as a break-out room. All rooms must be equipped with flip charts and markers. Refreshments throughout the day and a working lunch should be provided. 
  • It is a requirement that an early intake or conference call between the arbitrator and counsel to confirm such arrangements.
Are there any additional fees?
  • For out-of-town arbitrations, there may be an additional charge for travel time, meals, transportation costs, and accommodation.
Are Arbitrations confidential?
  • All Arbitrations are private and confidential.
  • Only the Parties and their Representatives may attend the arbitration.  Any other person may attend the Arbitration only with the express consent of the Arbitrator/Arbitration Panel.
  • The Arbitrator/Arbitration Panel may require the sequestration of any witnesses or witnesses during the testimony of other witnesses.
  • Information concerning the existence of an Arbitration or information pertaining to anything which occurred at an Arbitration, is disclosed through an Arbitration process, or is disclosed in relation to an Arbitration shall not be disclosed or used outside an Arbitration proceeding or for any other purpose by a Party except:
    • As needed and is appropriate to conduct the Arbitration itself, including the preparation of witnesses, support services, administrative services, and document collection.
    • In conjunction with an application to a court seeking interim relief or to recognize, enforce or set aside an arbitral award.
    • As required by law, by a court of competent jurisdiction or a competent regulatory body.
    • For educational purposes where the names, facts and materials are anonymized.
Can an Arbitration be done virtually?
  • Dempsey ADR Services offers virtual arbitrations.  Virtual arbitrations are a cost-effective and environmentally sound way to resolve disputes.
  • Parties need only have access to a stable internet connection, a computer, smartphone or tablet and a web camera.
  • Dempsey ADR Services uses the ZOOM platform, however other video conference systems are equally acceptable.

Neutral Evaluation

What type of documentation should be submitted?
  • A Statement of Claim that sets out: 
    1. the material facts supporting the claim;
    2. the grounds, including applicable law, that support the claim; 
    3. the issues in dispute; and,
    4. the relief or remedy the plaintiff is seeking. 
  •  A Statement of Defence and any Counterclaim to the claimant that sets out:
    1. the material facts supporting the defence and/or counterclaim;
    2. the grounds, including applicable law, that support the defence and/or counterclaim;
    3. the issues in dispute; and, 
    4. the relief or remedy the defendant is seeking.
  • A list of and electronic copies of all Documents referred in the Statement of Claim, Statement of Defence and, if applicable, Counterclaim.
  • A list of and electronic copies of all Expert Reports either party intends to rely on.
  • A list of and electronic copies of all Witness Statements, Affidavits or ‘Will Say’ Statements that either party intends to rely on.
How much does Neutral Evaluation cost?
  • An agreement on a daily rate, hourly rate or fixed rate will be agreed upon before commencement of work.  The complexity of the case, the volume of materials and the numbers of parties will factor into any discussion of fees.
Where does the Neutral Evaluation take place?
  • Unless otherwise required, the evaluation will take place at the offices of Dempsey ADR Services Inc.
Is Neutral Evaluation confidential?
  • Yes. Before the disclosure of any information, a confidentiality agreement/non-disclosure agreement will be signed between Dempsey ADR Services Inc. and the client seeking the neutral evaluation.  
Are there any additional fees?
  • The inclusion of additional documentation, an expansion of scope or additional requests might attract additional feels.  
  • Fee agreements address the circumstances under which additional fees would be warranted.

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