Mediation Process
Appointment of the Mediator
Where the parties agree upon a proposed mediator who is willing to serve and has no personal, financial or other conflict of interests, they should jointly appoint that person as their mediator upon terms to be agreed directly with the mediator. Each of the mediators on the ASMI Panel is independent of ASMI, which plays no part in the arrangements made with them by the parties and does not receive any information about what transpires in the mediation.
If the parties cannot agree on the mediator, the Executive Director of ASMI, upon the written request of all parties, will provide for their consideration a list of the names of at least 3 potential mediators on the ASMI Panel of Mediators. Should the parties thereafter not agree upon the appointment of a mediator (whether from that list or not) the Executive Director of ASMI will, if requested by all parties to do so, appoint a mediator from its Panel of Mediators (whether from that list or not), being a mediator prepared to serve and having no personal, financial or other conflict of interests. The parties should then agree the terms of the appointment directly with the mediator.
What to Expect
Mediators usually determine the appropriate procedure, taking into account the circumstances of the case, the wishes of the parties and the need for expedition. Meetings may be held face to face, by telephone, by videoconference, or electronically. The mediator may communicate with the parties together or with any party separately, with or without its representatives. Unless required by law, nothing discussed in a private meeting with a party or its representative may be communicated by the mediator to any other person unless such communication is expressly permitted by that party or representative.
It is not the role of the mediator to give legal advice or to represent any party. The parties should obtain their own advice concerning their situation, the mediation process and any contemplated agreement.
Throughout the mediation, each party should have authority to settle the dispute or be represented by a person or persons having authority to settle the dispute.
Termination
Mediations usually end with the signing of a settlement agreement. This happens in about 80% of cases. Alternatively, any party may withdraw at any time without giving reasons. Sometimes the mediator terminates the mediation by deciding that further attempts to settle will be futile.
Mediator's Role in Subsequent Proceedings
In any subsequent Complaint to the ASMI Complaints Panel, arbitration or judicial proceedings in connection with the same matter, the mediator may not be a representative, counsel or expert witness for any party and may not sit on an ASMI Complaints Panel nor act as Arbiter on appeal nor be appointed as arbitrator unless all the parties and the mediator expressly so agree in writing beforehand, waiving any objection they might otherwise have.
Exclusion of Liability
ASMI has established its Panel of Mediators strictly on the basis that neither ASMI nor any of its officers, servants or agents shall be liable to any party or to any other participant for any act or omission in relation to or arising out of (i) any mediation in which a mediator is selected by the parties or appointed by the ASMI Executive Director from the ASMI Panel of Mediators or (ii) any settlement of the dispute. This exception shall not exclude a person’s liability for that person’s fraud.