Communications Providers Independent ADR Service

Mediation Procedure

THE COMMUNICATIONS PROVIDERS ADR SCHEME

1. Introduction

1.1 This procedure is designed to allow parties to use mediation as a method of resolving disputes within the communications sectors, more quickly, cost-effectively and privately than they could be through litigation or arbitration. It may be invoked by parties who are already in dispute or by reference from the terms of a contract between them.

1.2 The parties should take care to read the guidance notes (Guidance Notes for Mediation) accompanying this Procedure prior to submitting an Application for Mediation. Applications for mediation under the Procedure must be made on the designated application form, available from DRS-CIArb, 12 Bloomsbury Square, London, WC1A 2LP. Telephone 020-7421-7444; Fax 020-7404-4023; email info@drs-ciarb.com. Application forms can also be downloaded from www.communications-adr.com.

1.3 The procedure does not apply to disputes where one or other of the parties has already initiated legal proceedings, unless that legal action is suspended or discontinued by agreement between the parties.

1.4 Any party to the dispute may initiate mediation under the procedure, although all parties to the dispute must agree in writing before the mediation can commence.

1.5 Upon receipt of the completed Application for Mediation signed by all parties to the dispute, or by their representatives, together with receipt of the relevant registration fees (see section 1.7), DRS-CIArb (the administrator), will, after consultation with the parties (see section 2.2), appoint the mediator to resolve the dispute.

1.6 The procedure generally applies to disputes between two parties but, if they and the mediator agree, the procedure may be extended to cover disputes involving three or more parties. Where there are more than two parties to the dispute the mediator’s fees may be renegotiated prior to any party, the administrator or the mediator incurring any cost in respect of the mediation.

1.7 A registration fee of £200 plus VAT is payable by each party to the dispute to the administrator when an Application for Mediation is submitted or thereafter if joined later under 1.6 above.

1.8 Registration fees are non-refundable except as described in Section 7.1.

1.9 The administrator administers the procedure and the appointment of the mediator is at its discretion, following consultation with the parties.

1.10 The parties are jointly and severally liable for all fees incurred in the mediation, including the administrator’s administration fee, the mediator’s fees and the costs incurred for accommodation, refreshments, travel and all other out of pocket expenses.

2 Mediation procedure

2.1 To commence mediation an application must be first submitted to the administrator on the mediation application form (Application for Mediation), accompanied by:

(a) A short case résumé, limited to 4 pages of A4 or equivalent from each party giving details of the dispute in order to help the administrator to identify a suitable mediator for appointment (see 1.10 above)

(b) The appropriate registration fees

2.2 The administrator will contact the parties with details of suitable mediators for their consideration and agreement prior to appointment. The administrator will appoint the mediator, who will be a member of its IP & Electronic Media Panel and who will, whenever possible and where it is requested, have professional experience related to the subject matter of the dispute. The administrator will send the case file and Application Form to the mediator, once appointed. All appointed mediators will be bound by the administrator’s relevant Code of Ethics.

2.3 Once appointed the mediator will agree arrangements with the parties for the future conduct of the mediation, including payment of his / her fees, meetings and submissions.

2.4 The mediation will take the form of a joint session attended by the decision maker for each of the parties in dispute and one additional representative for each party, unless otherwise agreed by the parties and the mediator. Costs of representation and administration of their own case are the responsibility of the parties unless otherwise agreed in any Settlement Agreement.

2.5 The mediator may request that a second mediator (“assistant”) attends to assist him. The parties may refuse to accept the attendance of an assistant but should bear in mind that the assistant is there to assist the mediator and does so at no additional cost to the parties.

2.6 The mediator’s fee is set at £220 plus VAT per hour, plus reasonable travel expenses at cost. The mediator’s fees will not exceed £2,200 plus VAT, provided the mediation itself lasts no more than 20 hours. The mediator may only charge for a maximum of 5 hours “reading-in” time before the mediation. If, following the agreement of the parties, the mediation continues for more than 20 hours, then the mediator’s fee will be chargeable for the number of hours by which the length of the mediation exceeds 20, at the rate of £220 plus VAT.

2.7 The mediation will take place at a venue to be arranged and agreed by the parties and at the cost of the parties. The parties are reminded that the administrator has hearing rooms with modern facilities in Central London.

2.8 If the dispute is resolved during mediation, the mediator and / or the parties will record in writing the agreement reached by the parties. This is known as the Settlement Agreement. The signed Settlement Agreement will be a binding contract and, as such, capable of being enforced by a court.

2.9 At any time during the mediation the parties may jointly ask the mediator to act as a conciliator and, when deemed appropriate by the conciliator, propose a solution to them that might meet both parties needs. The transition from mediator to conciliator has no effect on the costs of the procedure outlined in Section 3 below.

2.10 In the event of the original mediator resigning, dying or otherwise becoming incapacitated or for any reason being unable to attend competently and / or expeditiously and / or without conflict of interest to his or her duties then the administrator will, after consultation, appoint another mediator. There will be no additional charges for so doing.

3 Costs of mediation

3.1 The mediator’s fees and travel expenses are the joint responsibility of the parties and shall be paid to the mediator, through the administrator.

3.2 The administrator’s fee is covered by the Registration Fee(s), to be submitted with the Application for Mediation as per sections 1.7 and 2.1 (b).

3.3 Each party shall bear its own costs of preparing and submitting its case and of attending any joint session. Accordingly, the parties hereby agree that neither one of them shall institute legal action against the other to recover these costs. (See also 2.4 above.)

4 Confidentiality

4.1 No party involved in any mediation under the procedure, nor the administrator or the mediator (or any assistant mediator) shall disclose details of the proceedings or outcome of the proceedings to any stranger to the case.

4.2 Notwithstanding 4.1, all parties, in agreeing to the resolution of disputes under the procedure, give permission to the administrator to gather, retain and publish statistical and other information on such disputes whilst preserving the anonymity of parties.

5 Administrator’s Immunity

5.1 Neither the administrator, nor any person designated by it to nominate or appoint a mediator, shall be liable for anything done or omitted in the discharge or purported discharge of that function unless the act or omission is shown to have been in bad faith. By accepting these rules the parties hereby indemnify the administrator, or the designated nominating person, against any possible legal action bought by any third party, arising from the discharge of the aforesaid functions, unless the act or omission is shown to have been in bad faith.

5.2 Neither the administrator, nor the person designated by the parties to nominate or appoint a mediator, shall be liable, by reason of having nominated or appointed the mediator, for anything done or omitted by the mediator (or his employees or agents) in the discharge or purported discharge of his functions as mediator. By accepting these rules the parties hereby agree to indemnify the administrator, or the designated nominating person, against any possible legal action brought by any third party, arising from the discharge of the aforesaid functions, unless the act or omission is shown to have been in bad faith.

6 Immunity of the mediator

6.1 Neither the mediator nor any of his or her employees or agents shall be liable for anything done or omitted in the discharge or the purported discharge of his or her function as mediator, unless the act or omission is shown to have been in bad faith. The parties shall, likewise, indemnify the mediator and any assistant mediator against any possible legal action brought by any third party, for any act or omission as a consequence.

7 Reservation of service

7.1 The administrator reserves the right to decline an individual request to nominate a mediator.

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