Appendix M-4 Neutral Evaluation

DEFINITION

1. In this Appendix:
   
   

   1. "Chapter"

      means the Dispute Resolution Chapter;
      
      

   2. "party"

      means a participating Party to a neutral evaluation under this Appendix; and
      
      

   3. "section"

      means a section in this Appendix.

GENERAL

2. A neutral evaluation commences on the date that the Parties directly engaged in the disagreement have agreed in writing to use neutral evaluation under paragraph 24 of the Chapter.

APPOINTMENT OF NEUTRAL EVALUATOR

3. A neutral evaluation will be conducted by one person jointly appointed by the parties.
   
   
4. A neutral evaluator will be:
   
   
   1. experienced or skilled in the subject matter or issues of the disagreement; and
      
      
   2. independent and impartial.
      
      
5. If the parties fail to agree on a neutral evaluator within 21 days after commencement of a neutral evaluation, 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 neutral evaluator may employ reasonable and necessary administrative or other support services.

REQUIREMENT TO WITHDRAW

7. At any time a party may give a neutral evaluator and the other parties a written notice, with or without reasons, requiring the neutral evaluator to withdraw from the neutral evaluation on the grounds that the party has justifiable doubts as to the neutral evaluator's independence or impartiality.
   
   
8. On receipt of a written notice under section 7, the neutral evaluator must immediately withdraw from the neutral evaluation.
   
   
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 neutral evaluator's appointment terminates if:
    
    
    1. the neutral evaluator is required to withdraw under section 8;
       
       
    2. the neutral evaluator withdraws from office for any reason; or
       
       
    3. the parties agree to the termination.
       
       
11. Unless the parties agree otherwise, if a neutral evaluator's appointment terminates, a replacement will be appointed under section 5 within the required time commencing from the date of the termination of the appointment.

COMMUNICATIONS

12. Except with respect to administrative details or a meeting under section 31, the parties will not communicate with the neutral evaluator:
    
    
    1. orally except in the presence of all parties; or
       
       
    2. in writing without immediately sending a copy of that communication to all parties.
       
       
13. Section 12 also applies to any communication by a neutral evaluator to the parties.

CONDUCT OF NEUTRAL EVALUATION

14. The parties will:
    
    
    1. cooperate fully with the neutral evaluator;
       
       
    2. comply with any requests made by the neutral evaluator as permitted or required under this Appendix; and
       
       
    3. give prompt attention to and respond to all communications from the neutral evaluator.
       
       
15. A neutral evaluation will be conducted only on the basis of documents submitted by the parties under section 20 unless the parties agree to, or the neutral evaluator requires, additional submissions or other forms of evidence.
    
    
16. If a hearing is held, the hearing must be conducted as efficiently as possible and in the manner the neutral evaluator specifies, after consultation with the parties.
    
    
17. If a hearing is held, the panel must give the parties reasonable written notice of the hearing date, which notice must, in any event, be not less than seven days.
    
    
18. No transcript or recording will be kept of a hearing, but this does not prevent a person attending the hearing from keeping notes of the hearing.
    
    
19. The legal rules of evidence do not apply to a neutral evaluation.
    
    
20. Within 15 days after the appointment of a neutral evaluator, each party must deliver to the other parties and to the neutral evaluator a written submission respecting the disagreement, including facts upon which the parties agree or disagree, and copies of any documents, affidavits and exhibits on which the party relies.
    
    
21. Within 21 days after the appointment of a neutral evaluator, a party may submit a reply to the submission of any other party and, in that event, will provide copies of the reply to the party and the neutral evaluator.

CONFIDENTIALITY

22. In order to assist in the resolution of the disagreement, a neutral evaluation will not be open to the public.
    
    
23. The parties, and all persons, will keep confidential:
    
    
    1. all oral and written information disclosed in the neutral evaluation; and
       
       
    2. the fact that this information has been disclosed.
       
       
24. 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 neutral evaluation, any oral or written information disclosed in or arising from the neutral evaluation, including:
    
    
    1. any documents of other parties produced in the course of the neutral evaluation which are not otherwise produced or producible in that proceeding;
       
       
    2. any views expressed, or suggestions made, in respect of a possible settlement of the disagreement;
       
       
    3. any admissions made by any party in the course of the neutral evaluation, unless otherwise stipulated by the admitting party;
       
       
    4. the fact that any party has indicated a willingness to make or accept a proposal for settlement; and
       
       
    5. subject to section 28, the opinion of the neutral evaluator.
       
       
25. Sections 23 and 24 do not apply:
    
    
    1. in any proceedings for the enforcement or setting aside of an agreement resolving the disagreement that was the subject of a neutral evaluation;
       
       
    2. if the adjudicator in any proceeding determines that the interests of the public or the administration of justice outweigh the need for confidentiality; or
       
       
    3. if the oral or written information is in the public forum.
       
       
26. A neutral evaluator, or anyone retained or employed by the neutral evaluator, is not compellable in any proceedings to give evidence about any oral and written information acquired or opinion formed by that person as a result of a neutral evaluation under this Appendix, and all parties will oppose any effort to have that person or that information subpoenaed.
    
    
27. A neutral evaluator and anyone retained or employed by the neutral evaluator 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 neutral evaluation.
    
    
28. Despite sections 23 to 26, after an arbitral tribunal has delivered its final arbitral award, or a court has referred its decision, in respect of a disagreement, a party, for the purpose only of making a submission on the allocation of costs of that arbitral or judicial proceeding, may give to the arbitral tribunal or the court a copy of:
    
    
    1. the neutral evaluator's opinion respecting that agreement; or
       
       
    2. the neutral evaluator's notice of termination under section 7.

NON-BINDING OPINION

29. Within 21 days after the later of:
    
    
    1. delivery of the last submission required or permitted in a neutral evaluation under this Appendix; or
       
       
    2. completion of a hearing,
       
       
    the neutral evaluator will deliver to the parties a written opinion with reasons in respect of the probable disposition of the disagreement should it be submitted to arbitral or judicial proceedings, as the case may be, under the Chapter.
    
    
30. An opinion under section 29 is not binding on the parties.

ATTEMPT TO RESOLVE AFTER OPINION

31. Within 21 days after delivery of an opinion under section 29, the parties will meet and make an effort to resolve the disagreement, taking into account the opinion of the neutral evaluator or any other considerations.
    
    
32. If the parties and the neutral evaluator agree, the neutral evaluator may attend a meeting under section 31, and provide any necessary assistance to the parties.

FAILURE TO COMPLY

33. If a party fails to participate in the neutral evaluation as contemplated in sections 14 to 21, the neutral evaluator may:
    
    
    1. provide an opinion based solely upon the information and submissions they have obtained; or
       
       
    2. give a written notice of termination of the neutral evaluation
       
       
    and, in either event, the neutral evaluator must record that party's failure.

TERMINATION OF NEUTRAL EVALUATION

34. A neutral evaluation is terminated when any of the following occurs:
    
    
    1. the neutral evaluator gives a notice of termination under section 33(b);
       
       
    2. the expiration of 30 days after receipt of an opinion under section 29 or 33, as the case may be, or any longer period agreed by the parties;
       
       
    3. all the parties directly engaged in the disagreement agree in writing to terminate evaluation; or
       
       
    4. all the parties directly engaged in the disagreement sign a written agreement resolving the disagreement.

COSTS

35. A party that has failed to participate in a neutral evaluation as contemplated in sections 14 to 21 is responsible for its share of the costs of the neutral evaluation, despite its failure to participate.