b) The parties agree not to seek a subpoena or judicial proceedings or to use any other judicial procedure to require the presentation of the recordings, notes, work products or anything else of the mediator in the context of a legal proceeding concerning this dispute. To the extent that they have the right to request these documents, this right is removed. c) If one of the parties decides to summon the mediator at a later date, the mediator may rescind the subpoena. This party undertakes to reimburse the Ombudsman for the costs he incurs in connection with such an action, including legal fees, plus the ombudsman`s hourly rate for the time incurred by this case. c) Anyone who signs this document, whether or not they are involved in the litigation, accepts the confidentiality agreement. Anyone who signs on behalf of a company indicates that they have the authority to attach them to the confidentiality provisions of this agreement. From the mediator`s point of view, the purpose of premedation is simply to bring the parties to mediation. The parties` strategy is less clear. Are they preparing their best deal, thinking about innovative solutions, really calculating their “best alternative to a negotiated agreement” (BATNAS)? It is possible to combine mediation and arbitration.
In this case, the dispute is first subject to mediation in accordance with WIPO`s mediation rules. In the absence of an agreement within a specified time frame (it is recommended that the parties provide for either 60 or 90 days) or if a party refuses to participate in or continue to participate in mediation, the dispute is referred by arbitration in accordance with WIPO`s arbitration rules (or, if the parties agree, by expedited arbitration). The advantage of the combined procedure is the incentive it provides for the faithful engagement of both parties to the mediation process, since the consequence of a failure of a financial and management commitment agreement that should result from subsequent arbitration will be more tangible. Depending on the issues of the litigation and their complexity, as well as the economic importance of the litigation and the distance between the parties` respective positions in the litigation, mediation may include mediation meetings that take place over a single day, over several days or over a longer period of time. Participation in meetings after the first meeting between the Ombudsman and the parties would generally include the following steps if the mediator plays a supporting role: 10. When an agreement is reached, the parties or their lawyer will establish all transaction documents or settlement minutes and possible authorizations. The mediator has a primary obligation to clarify the capacity of the parties. Sometimes the mental or emotional capacity of one or both parties seems limited from the start. This is often due to the stress caused by conflict.
Although the reduction in capacity is caused by their conflict and may be temporary, they heighten emotions of anxiety, anger, excitement and general insecurity. As transient as these emotions may be, they are real for dissenting parties. A capacity limitation can only be revealed at a later stage of mediation. From time to time, such a restriction may warrant a brief interruption of the mediation process. The differences between mediation and arbitration all arise from the fact that, in mediation, the parties retain responsibility and control of the dispute and do not transfer decision-making power to the Ombudsman. In practical terms, this means two things: most mediation agreements provide that the mediator is held accountable to the parties for any act or omission related to the services they must provide. Such a clause is an attempt at complete non-responsibility and can be guaranteed to the immunity of arbitrators.