Appendix M-2 Dispute Resolution

Mediation

DEFINITIONS

1. In this Appendix:
   
   

   1. "Chapter"

      means the Dispute Resolution Chapter of the Agreement;
      
      

   2. "party"

      means a participating Party to a mediation under this Appendix; and
      
      

   3. "section"

      means a section in this Appendix.

GENERAL

2. A mediation commences on the date the Parties directly engaged in the disagreement have agreed in writing to use mediation, or are deemed to have agreed to use mediation, under paragraph 24 of the Chapter.

APPOINTMENT OF MEDIATOR

3. A mediation will be conducted by one mediator jointly appointed by the parties.
   
   
4. A mediator will be:
   
   
   1. an experienced and skilled mediator, preferably with unique qualities or specialized knowledge that would be of assistance in the circumstances of the disagreement; and
      
      
   2. independent and impartial.
      
      
5. If the parties fail to agree on a mediator within 15 days after commencement of a mediation, the appointment will be made by the neutral appointing authority on the written request of a party that is copied to the other parties.
   
   
6. Subject to any limitations agreed to by the parties, a mediator may employ reasonable and necessary administrative or other support services.

REQUIREMENT TO WITHDRAW

7. At any time a party may give the mediator and the other parties a written notice, with or without reasons, requiring the mediator to withdraw from the mediation on the grounds that the party has justifiable doubts as to the mediator's independence or impartiality.
   
   
8. On receipt of a written notice under section 7, the mediator must immediately withdraw from the mediation.
   
   
9. A person who is a Nisga’a citizen, or related to a Nisga’a citizen, must not be required to withdraw under section 7 solely on the grounds of that citizenship or relationship.

END OF APPOINTMENT

10. A mediator's appointment terminates if:
    
    
    1. the mediator is required to withdraw under section 8;
       
       
    2. the mediator withdraws from office for any reason; or
       
       
    3. the parties agree to the termination.
       
       
11. If a mediator's appointment terminates, a replacement mediator will be appointed using the procedure in sections 3 to 5 and the required time period commences from the date of termination of the appointment.

REPRESENTATION

12. A party may attend a mediation with or without legal counsel.
    
    
13. If a mediator is a lawyer, the mediator must not act as legal counsel for any party.
    
    
14. At the commencement of the first meeting of a mediation, each party will advise the mediator and the other parties of any limitations on the authority of its representatives.

CONDUCT OF MEDIATION

15. The parties will:
    
    
    1. make a serious attempt to resolve the disagreement by:
       
       
       1. identifying underlying interests,
          
          
       2. isolating points of agreement and disagreement,
          
          
       3. exploring alternative solutions, and
          
          
       4. considering compromises or accommodations; and
          
          
    2. cooperate fully with the mediator and give prompt attention to, and respond to, all communications from the mediator.
       
       
16. A mediator may conduct a mediation in any manner the mediator considers necessary and appropriate to assist the parties to resolve the disagreement in a fair, efficient, and cost-effective manner.
    
    
17. Within seven days of appointment of a mediator, each party will deliver a brief written summary to the mediator of the relevant facts, the issues in the disagreement, and its viewpoint in respect of them and the mediator will deliver copies of the summaries to each party at the end of the seven day period.
    
    
18. A mediator may conduct a mediation in joint meetings or private caucus convened at locations the mediator designates after consulting the parties.
    
    
19. Disclosures made by any party to a mediator in private caucus must not be disclosed by the mediator to any other party without the consent of the disclosing party.
    
    
20. No transcript or recording will be kept of a mediation meeting but this does not prevent a person from keeping notes of the negotiations.

CONFIDENTIALITY

21. In order to assist in the resolution of a disagreement, a mediation will not be open to the public.
    
    
22. The parties, and all persons, will keep confidential:
    
    
    1. all oral and written information disclosed in the mediation; and
       
       
    2. the fact that this information has been disclosed.
       
       
23. The parties will not rely on or introduce as evidence in any proceeding, whether or not that proceeding relates to the subject matter of the mediation, any oral or written information disclosed in or arising from the mediation, including:
    
    
    1. any documents of other parties produced in the course of the mediation that are not otherwise produced or producible in that proceeding;
       
       
    2. any views expressed, or suggestions, or proposals made in respect of a possible settlement of the disagreement;
       
       
    3. any admissions made by any party in the course of the mediation, unless otherwise stipulated by the admitting party;
       
       
    4. any recommendations for settlement made by the mediator; and
       
       
    5. the fact that any party has indicated a willingness to make or accept a proposal or recommendation for settlement.
       
       
24. Sections 22 and 23 do not apply:
    
    
    1. in any proceeding for the enforcement or setting aside of an agreement resolving the disagreement that was the subject of a mediation;
       
       
    2. if the adjudicator in any proceeding determines that the interests of public or the administration of justice outweigh the need for confidentiality; or
       
       
    3. if the oral or written information referred to in those sections is in the public forum.
       
       
25. A mediator, or anyone retained or employed by the mediator, is not compellable in any proceeding to give evidence about any oral and written information acquired or opinion formed by that person as a result of the mediation, and all parties will oppose any effort to have that person or that information subpoenaed.
    
    
26. A mediator, or anyone retained or employed by the mediator, is disqualified as a consultant or expert in any proceeding relating to the disagreement, including any proceeding that involves persons not a party to the mediation.

REFERRAL OF ISSUES TO OTHER PROCESSES

27. During a mediation the parties may agree to refer particular issues in the disagreement to independent fact-finders, expert panels or other processes for opinions or findings that may assist them in the resolution of the disagreement, and in that event, the parties must specify:
    
    
    1. the terms of reference for the process;
       
       
    2. the time within which the process must be concluded; and
       
       
    3. how the costs of the process are to be allocated to the parties.
       
       
28. The time specified for concluding a mediation will be extended for 15 days following receipt of the findings or opinions rendered in a process described under section 27.

RIGHT TO WITHDRAW

29. A party may withdraw from a mediation at any time by giving written notice of its intent to the mediator.
    
    
30. Before a withdrawal is effective, the withdrawing party will:
    
    
    1. speak with the mediator;
       
       
    2. disclose its reasons for withdrawing; and
       
       
    3. give the mediator the opportunity to discuss the consequences of withdrawal.

TERMINATION OF MEDIATION

31. A mediation is terminated when any of the following occurs:
    
    
    1. subject to section 28, the expiration of 30 days after the appointment of the mediator, or any longer period agreed by the parties in writing;
       
       
    2. the parties have agreed in writing to terminate the mediation or not to appoint a replacement mediator under section 11;
       
       
    3. a party directly engaged in the disagreement withdraws from the mediation under section 29; or
       
       
    4. the parties directly engaged in the disagreement sign a written agreement resolving the disagreement.

MEDIATOR RECOMMENDATION

32. If a mediation is terminated without the parties reaching agreement, the parties may agree to request the mediator to give a written non-binding recommendation for settlement, but the mediator may decline the request without reasons.
    
    
33. Within 15 days after delivery of a mediator's recommendation under section 32, the parties will meet with the mediator to attempt to resolve the disagreement.

COSTS

34. A party withdrawing from a mediation under section 29 is not responsible for any costs of the mediation that are incurred after the date that party's withdrawal takes effect.