– MEDIATION PROTOCOL –

MEDIATION PROTOCOL

BEFORE

MATA DONA, José Rafael
Chartered Mediator
Avenue des Meuniers 121
1160 Brussels
Tel : 02.227.97.50
Registration : 0890.002.219

Hereinafter “The Mediator”

BETWEEN

Name:
Name of Representative:
Or the name of the person running the business personally:
Head office:
BCE:
Email:  

Eventual Counsel:

 

AND

Name:
Name of Representative:
Or the name of the person running the business personally:
Head office:
BCE:
Email:

Eventual Counsel: 

Hereinafter “The parties”


AGREEMENT TO MEDIATE

  1. The scope of this mediation is restricted to the following matters:

[to be completed]

Independence of the mediator

  1. The parties recognize that, although the mediator is a licensed attorney, the task of the mediator is not to act as a judge or arbitrator, represent or advocate for any party, and/or provide legal advice to any party. If the mediator expresses a legal opinion, it will be indicative only and the parties already agree to grant it no legal consequences.
  1. The parties agree that it is their responsibility, if they believe they need such legal advice, to seek and obtain legal advice from other qualified professionals at any time.

Parallel or new proceedings

  1. The parties retain and reserve their rights to resort to judicial proceedings or submitting a request for arbitration. However, all proceedings except those purely related to mere conservatory measures will be suspended until the conclusion of a settlement agreement or until the issuance of written confirmation of the termination of the mediation by one of the parties or by the mediator himself.

Voluntary process

  1. Without any prejudicial recognition, the parties agree to participate in mediation in good faith by sincerely attempting to reach a mutually agreed solution.

Conduct of Mediation

  1. The Parties shall be present at the mediation meeting, accompanied, if necessary, by their lawyers. The parties shall inform the Mediator of the names of their representatives and advisors attending the mediation within such time as the mediator may specify. Each Party shall ensure (a) that persons qualified to enter into an agreement are present at the mediation meetings; and (b) that persons with personal knowledge of the facts relevant to the dispute are present to allow a useful discussion of the whole file.
  1. Where appropriate, the mediator may communicate with the parties orally, in writing, in person, electronically, or otherwise, and may do so jointly or separately, before the scheduled mediation, to discuss the manner and procedure for the conduct of the mediation, including setting relevant timelines.
  1. The mediator may, when he deems it appropriate, organize meetings, in plenary or aside (“caucus”) with one or other of the parties, who may also, at any time, ask to discuss aside and confidentially with him.
  1. No persons other than the parties, their representatives, their advisors, and the mediator may attend the mediation, save with the permission of the parties and the mediator.

The mediator may invite a person of his or her choice as an observer to the mediation to allow the person to be present as a passive witness or unpaid co-mediator. This person will sign a confidentiality agreement in accordance with the attached model.

  1. The mediator may obtain expert advice or assistance in technical matters with the parties’ consent and the parties shall bear any expenses incurred in this regard.

Duration of the process

  1. The Parties shall try to achieve a settlement agreement on _______ (date). Consequently, they engage themselves, as far as possible, in the following setting of time and actions:
  • Signature of this Protocol on _____(date)
  • Examination of the file and preparation for the mediation meeting
  • Mediation meetings on ________ at _______(time); ________ at _______(time); ________ at _______(time); and ________ at _______(time);
  • Follow-up if necessary
  1. The mediator may suspend or terminate the mediation process after giving written notice to the parties that any time limit set for the mediation, including any extension thereof, has expired.

Confidentiality

  1. Unless agreed otherwise in writing, the parties and the mediator understand and agree that anything discussed during the mediation will be kept confidential and must not be disclosed in any later legal proceeding, neither by us, our counsel nor whomever, save where it is necessary for purposes of its implementation or enforcement, or unless required by applicable law. The following possible exceptions may apply:
  • Signed written agreements (e., the agreement to mediate, the mediation fee agreement, and any document certifying the failure of the mediation process);
  • Threats of violence;
  • Plans to commit a crime or conceal ongoing criminal activity;
  • Admissions of abuse or neglect of a child, adult or disabled person; and
  • General fact patterns, on an anonymous basis, for research and/or peer consultation purposes.

Notwithstanding, nothing in this Convention shall affect in any way the right of the parties to use in legal proceedings (judicial or otherwise) documents relating to the case in question that have been exchanged in the current mediation process, when these documents were already in their possession or were at their disposal anyway and had, or could have had, the legal right to use them or refer to them.

  1. The mediator may request any person to participate in the mediation process to sign an undertaking of confidentiality in accordance with the attached model.

Settlement/Non-settlement

  1. The parties understand that any agreement must be mutually acceptable to all parties, and that no party shall be bound by anything said or done at the mediation unless a written settlement is reached and signed by or on behalf of all necessary parties. The mediation shall terminate upon the signing by the parties of a written settlement agreement.

For the avoidance of doubt, a settlement agreement may take the form of an electronic record, and be signed by electronic signature.

  1. The parties are also aware that either party can terminate the process unilaterally at any time by notice of its desire not to continue the process.
  1. It is not in principle for the mediator to judge the value or desirability of the agreement which must remain the will of the Parties and their “ownership”.

Nevertheless, if the mediator is of the opinion, based on his own professional experience and his capacity for judgement and analysis, that the continuation of the mediation process is likely to cause serious prejudice to either Party or create a situation of gross imbalance or manifest injustice to a Party, the mediator may suspend or terminate the mediation process.

  1. The parties understand that the Mediation may be terminated by notification of the mediator of his understanding that the mediation cannot be usefully continued.

Liability

  1. The parties agree to hold the Mediator harmless from any legal claims or actions that might arise from the mediation sessions or any resulting agreement.
  2. The parties further agree not to subpoena or require the mediator or any agreed observer, to testify or produce records, notes, or work product in any future arbitral, administrative or similar proceedings or investigations concerning any aspect of the mediation, unless all the parties and the mediator agree otherwise in writing. The parties agree that no recordings or stenographic records will be made of the initial mediation session or any follow-up sessions or communications, save for that which may be necessary to record any settlement agreement.
  1. The parties understand that if the agreement is not considered contrary to law and order, the parties will be able to seek homologation of it before the competent judicial authority.

Financial Matters

  1. The following fees are applicable to the parties irrespective of the fact that a lawsuit has or not been filled and of the intervention or non-intervention of legal counsels representing one or more of the parties.

Mediations generally occur Monday – Friday, excluding holidays, between the hours of 9 a.m. and 5 p.m. An additional fee of 100 EUR excl. VAT per hour will be applied for weekend, holiday and evening mediations, as well as for each additional party.

Hourly – The mediator charges 200 EUR excl. VAT per hour (rounded up in 15-minute increments). Matters scheduled on an hourly basis are generally scheduled to begin at either 9:00 a.m. or 1:00 p.m.

Half Day – The mediator charges 700 EUR excl. VAT per half day (4 hours). Matters scheduled for a half-day mediation are generally scheduled to begin at either 9:00 a.m. or 1:00 p.m. The mediator may be available to continue mediation sessions into the afternoon or evening on half-day cases, depending on location and subject to an hourly rate of 185 EUR excl. VAT per hour (rounded up in 15-minute increments) beyond the allotted 4 hours.

Full Day – The mediator charges 1.200 excl. VAT per full day (8 hours). Matters scheduled for a full-day mediation are generally scheduled to begin at 9:00 a.m. The mediator may be available to continue mediation sessions into the evening on full-day cases, depending on location and subject to an hourly rate of 175 EUR excl. VAT per hour (rounded up in 15-minute increments) beyond the allotted 8 hours.

  1. On hourly and half-day mediations, the mediator reserves the right to charge for any additional time required for preparation and/or follow up at a rate of 150 EUR excl. VAT per hour (rounded up in 15-minute increments).
  1. 24. The mediator charges 75 EUR excl. VAT per hour (rounded up in 15-minute increments) for travel.
  1. In addition to receiving reimbursement for any direct expenses reasonably incurred in national or international mediations, in international mediations the mediator is entitled to receive from the parties a fee of 250 EUR excl. VAT per day of meetings, as well as reimbursement of ordinary travel expenses such as: meals, accommodation, aeroplane tickets, etc.
  1. Conference room facilities must be arranged by the parties. The mediator can assist in locating a suitable facility; however, the facility fee will be the responsibility of the parties.
  1. All fees will be billed to and are due from the mediation parties in equal shares unless the parties agree to a different allocation and notify the mediator of the agreed-upon allocation at the time the mediation is scheduled.
  1. An amount of ______ EUR due for reserved time must be received by the mediator no later than 10 business days prior to the mediation to guarantee the mediation date and time. The remaining balance, including additional preparation, travel, conference and/or follow-up time, if any, will be billed to the parties after the conclusion of the mediation.
  1. The mediator may suspend or terminate the mediation process after giving written notice to the parties that due expenses and fees by one or more parties have not been fully paid for more than 14 business days after the due date for payment.
  1. All invoices shall be due and payable within 14 business days at the latest to Mata Dona’s bank account: IBAN: BE87001519368994 and BIC: GEBABEBB.
  1. Any mediation cancelled or postponed within 5 business days of the scheduled date is subject to forfeiture of 50% of the deposit amount, unless the mediator’s time can be rescheduled for another matter.
  1. Whether there is a settlement agreement or not, the parties are jointly and severally responsible for payment of fees and costs.

Disputes

  1. The law of this agreement is the Belgian Law.
  1. All disputes, controversies or differences arising out of or in connection with this agreement between the parties and the mediator, including any question regarding its existence, validity or termination, shall be first referred to mediation in accordance with the Mediation Rules of bMediation for the time being in force. The proceedings shall be conducted in English and the place of the mediation shall be Brussels, Belgium.
  1. Should the mediation fail between the parties and the mediator, the parties and the mediator shall accept the only jurisdiction of Brussels Courts.

Done in …………………………….(place), on …………………………(date) in……(number) original copies, one for each party and their eventual counsel and one for the mediator, each of them acknowledging receipt of one.

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Mediator