DR Model Clauses and Agreements

Table of Contents

• Simple Clause
• Two-Tier Negotiation
• Negotiation/Mediation
• Mediation
• Mediation/Arbitration
• Arbitration
• Multi-Step Clause - Negotiation/Mediation/Arbitration
• Miscellaneous
• Authority to Settle
• No Effect on Rights of Cancellation
  • Appendix A - Sample Mediation Agreement
  • Appendix B - Sample Arbitration Agreement
  • Appendix C - Negotiation/mediation/arbitration (All Inclusive)

SIMPLE CLAUSE

(leaving choice of process to parties)

If a dispute arises out of, or in connection with this Contract, the parties agree to meet to pursue resolution through negotiation or other appropriate dispute resolution process before resorting to litigation.

All information exchanged during this meeting or any subsequent dispute resolution process, shall be regarded as “without prejudice” communications for the purpose of settlement negotiations and shall be treated as confidential by the parties and their representatives, unless otherwise required by law. However, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during the dispute resolution process.

TWO-TIER NEGOTIATION

If a dispute arises out of, or in connection with this Contract, and the parties do not resolve some or all of the dispute through discussions then:

1. Written notice, containing a request to negotiate, shall be given by either party to the other(s). This notice shall be given promptly in order to prevent further damages resulting from delay and shall specify the issues in dispute.
2. Negotiations shall occur first between representatives of the Contractor (Insert title of authorized representative) and the managing department/project authority (Insert title of authorized representative) who play a supervisory role in the performance or management of the Contract. If the representatives do not resolve some or all of the issues in the dispute within days after notice has been given, then the parties shall attempt to resolve the issues in dispute through a second level of negotiations, between a principal of the Contractor (Insert title of authorized representative) and a senior level manager from the managing department/project authority (Insert title of authorized representative).
3. All information exchanged during these negotiations shall be regarded as “without prejudice” communications for the purpose of settlement negotiations and shall be treated as confidential by the parties and their representatives, unless otherwise required by law. However, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during the negotiations.

NEGOTIATION/ MEDIATION

If a dispute arises out of, or in connection with this Contract, and the parties do not resolve some or all of the dispute through discussions then:

1. Written notice, containing a request to negotiate, shall be given by either party to the other(s). This notice shall be given promptly in order to prevent further damages resulting from delay and shall specify the issues in dispute.
2. Negotiations shall occur first between representatives of the Contractor (Insert title of authorized representative) and the managing department/project authority (Insert title of authorized representative) who play a supervisory role in the performance or management of the Contract. If the representatives do not resolve some or all of the issues in the dispute within days after notice has been given, then the parties shall attempt to resolve the issues in dispute through a second level of negotiations between a principal of the Contractor (Insert title of authorized representative) and a senior level manager from the managing department/project authority (Insert title of authorized representative).
3. All information exchanged during these negotiations shall be regarded as “without prejudice” communications for the purpose of settlement negotiations and shall be treated as confidential by the parties and their representatives, unless otherwise required by law. However, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during the negotiations.
4. If the parties do not resolve some or all of the issues in dispute through a second level of negotiations within days after notice has been given, then the parties agree to attempt to resolve the dispute through mediation, in accordance with the Terms of Mediation set out in Appendix to this Contract.

MEDIATION

If a dispute arises out of, or in connection with this Contract, and the parties do not resolve some or all of the dispute through negotiation, then the parties agree to attempt to resolve the dispute through mediation, in accordance with the Terms of Mediation set out in Appendix to this Contract.

MEDIATION/ARBITRATION

1. If a dispute arises out of, or in connection with this Contract, and the parties do not resolve some or all of the dispute through negotiation, then the parties agree to refer the issue(s) in dispute to mediation, in accordance with the Terms of Mediation set out in Appendix to this Contract.
2. If the parties do not resolve all of the issues in dispute through mediation, then within days from the date of the mediator's report, the parties shall submit those issues to binding arbitration pursuant to the Commercial Arbitration Act and Commercial Arbitration Code annexed thereto (R.S.C. 1985, ch. 17 (2^nd Supp.) as am.); and
3. The parties agree to the specific Terms of Arbitration as set forth in Appendix to this Contract.

ARBITRATION

If a dispute arises out of, or in connection with this Contract, and the parties do not resolve some or all of the dispute through negotiation then:

1. They agree to submit those issues in dispute to binding arbitration pursuant to the Commercial Arbitration Act and Commercial Arbitration Code annexed thereto (R.S.C. 1985, ch. 17 (2^nd Supp.) as am.); and
2. The parties agree to the specific Terms of Arbitration as set forth in Appendix to this Contract.

Multi-Step Clause – NEGOTIATION/MEDIATION/ARBITRATION

If a dispute arises out of, or in connection with this Contract, and the parties do not resolve some or all of the dispute through discussions then:

1. Written notice, containing a request to negotiate, shall be given by either party to the other(s). This notice shall be given promptly in order to prevent further damages resulting from delay and shall specify the issues in dispute.
2. Negotiations shall occur between representatives of the Contractor (Insert title of authorized representative) and the managing department/project authority who play a supervisory role in the performance or management of the Contract (Insert title of authorized representative).
3. All information exchanged during these negotiations shall be regarded as “without prejudice” communications for the purpose of settlement negotiations and shall be treated as confidential by the parties and their representatives, unless otherwise required by law. However, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during the negotiations.
4. If the parties do not resolve some or all of the issues in dispute within days after notice has been given, then the parties agree to attempt to resolve the dispute through mediation, in accordance with the Terms of Mediation set out in Appendix to this Contract.
5. If the parties do not resolve all of the issues in dispute through mediation, then within days from the date of the mediator's report, the parties shall submit those issues to binding arbitration pursuant to the Commercial Arbitration Act and Commercial Arbitration Code annexed thereto (R.S.C. 1985, ch. 17 (2^nd Supp.) as am.); and
6. The parties agree to the specific Terms of Arbitration as set forth in Appendix to this Contract.

Miscellaneous

(to be inserted in all contracts)

Authority to Settle

The parties agree that the representatives selected to participate in the dispute resolution process will have the authority required to settle the dispute or will have a rapid means of obtaining the requisite authorization.

No Effect on Rights of Cancellation

These clauses shall not affect any of her Majesty's rights of cancellation or termination contained in sections GC of this Contract (Insert clause numbers relating to cancellation and termination)

Appendix A - Sample Mediation Agreement

Terms of Mediation

1. Notice: If a dispute arises out of, or in connection with this Contract and the parties do not resolve some or all of that dispute through negotiation, then either party to the dispute may promptly submit to the other party(ies) a notice of intent to mediate. This notice shall be in writing and shall specify the issues in dispute.
2. Selection of Mediator : The parties agree to jointly select a mediator. If the parties cannot agree on the choice of mediator within days from the date of the notice of intent to mediate, then a mediator will be chosen, upon application by the parties, by the (insert name of DR organization / centre / professional association).
3. Location : The mediation shall be held at .
4. Exchange of information : The parties agree to an exchange of all information upon which they intend to rely in any oral or written presentation during the mediation. This exchange shall be complete no later than ten (10) days prior to the date set for the mediation.
5. Costs : The parties agree that they will each be responsible for the costs of their own legal counsel and personal travel. Fees and expenses of the mediator and all administrative costs of the mediation, such as the cost of the mediation room, if any, shall be borne equally by the parties.
6. Schedule : The parties shall jointly select a date for the mediation that is no later than days from the date of the notice of intent to mediate.
7. Confidentiality : All information exchanged during this mediation shall be regarded as “without prejudice” communications for the purpose of settlement negotiations and shall be treated as confidential by the parties and their representatives, unless otherwise required by law. However, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during the mediation.
8. Caucusing : The mediator is free to caucus with the parties individually, as he sees fit to improve the chances of a mediated settlement. Any confidential information revealed to the mediator by one party during such caucusing may only be disclosed to the other party(ies) with the former party's express permission.
9. Prohibition against Future Assistance : It is agreed that the mediator will neither represent nor testify on behalf of any of the parties in any subsequent legal proceeding between the parties or where they are opposed in interest. It is further agreed that the personal notes and written opinions of the mediator made in relation to this mediation are confidential and may not be used in any subsequent proceeding between the parties or where they are opposed in interest.
10. Termination : Either party may terminate the mediation at any time.
11. Mediator's Report : In the event that no agreement is reached, or is reached on some issues only, the mediator shall promptly provide a report to the parties stating only that no agreement was reached on some or all of the outstanding issues.
12. No New Steps : During the course of the mediation, the parties agree to take no new steps in any legal proceeding between them which concerns the same matter as is the subject of this mediation.

Appendix B - Sample Arbitration Agreement

Terms of Arbitration

1. Notice : The party requesting arbitration shall do so by written notice to the other party.
2. Commencement of the Proceedings : The arbitral proceeding commences on the date of receipt of the notice to arbitrate the dispute.
3. Selection of Arbitrator(s) : The parties agree to jointly select an arbitrator or three arbitrators. If the parties cannot agree on the choice of arbitrator(s) within days from the date of commencement of the proceedings, (option a.) an arbitrator will be chosen, upon application by the parties, by the (insert name of DR organization / centre / professional association), or (option b.) they will each select an arbitrator, and the two arbitrators will in turn select a third arbitrator.
4. Location : The arbitration shall take place at .
5. Costs : The parties agree that they will each be responsible for the costs of their own legal counsel and other costs incurred in preparing each party's case for arbitration. Fees and expenses of the arbitrators(s) and all the administrative costs of the arbitration, such as the cost of the hearing room, if any, shall be borne equally by the parties.
6. Statement of Claim : Within (e.g. 20) days of the selection of the arbitrator(s), the claimant shall submit a written statement of claim to the arbitrator(s) and to the other party, containing a statement of facts, issues in dispute and remedies sought.
7. Statement of Defence : Within (e.g. 20) days following the receipt of the statement of claim, the respondent shall submit a written statement of defence to the arbitrator(s) and to the claimant.
8. Hearing Date : The parties shall jointly select a date for the hearing that is no later than (e.g. 20) days from the date following the submission of the respondent's statement of defence.
9. Exchange of Information : Each party shall deliver to the other party(ies) and to the arbitrator(s) no later than (e.g. 10) days prior to the date set for a hearing, a copy of all documents and other materials on which the party intends to rely during the arbitral hearing.
10. Arbitral Award : The arbitrator(s) shall make every reasonable effort consistent with article 18 of the Commercial Arbitration Code to complete the proceedings and render the award within (e.g. six months) of the commencement date. The arbitral award shall be in writing and include reasons for the decision.
11. Governing Law Clause : The arbitrator(s) shall resolve this dispute in accordance with the laws of (e.g. Ontario).
12. Judgment : Judgment upon any arbitral award rendered may be entered in any court having jurisdiction thereof.
13. Prohibition against Future Assistance : It is agreed that the arbitrator(s) will neither represent nor testify on behalf of any of the parties in any subsequent proceeding between the parties or where they are opposed in interest. It is further agreed that the personal notes and written opinions of the arbitrator(s) made in relation to this arbitration are confidential and may not be used in any subsequent proceeding between the parties or where they are opposed in interest.

Negotiation/mediation/arbitration (All Inclusive)

If a dispute arises out of, or in connection with this contract, and the parties do not resolve some or all of the dispute through discussions then:

1. Either party may provide to the other written notice containing a request to negotiate. This notice shall be given promptly in order to prevent further damages resulting from delay and shall specify the issues in dispute.
2. If the parties do not resolve some or all of the issues in dispute within 30 days from the notice to commence negotiations, the parties agree to attempt to resolve those issues through mediation.
3. The parties agree to jointly select a mediator. If they are unable to do so, then a mediator will be chosen, upon application by the parties, by the
   (insert name of DR organization / centre / professional association).
4. All information exchanged during the negotiation and mediation processes shall be regarded as “without prejudice” communications for the purposes of settlement negotiations and shall be treated as confidential by the parties and their representatives unless otherwise required by law. However, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during negotiation or mediation.
5. The parties agree that the representatives selected to participate in the dispute resolution process will have the authority required to resolve the dispute, or will have a rapid means of obtaining the requisite authorization.
6. The parties agree that they will each be responsible for the costs of their own legal counsel and personal travel. Fees and expenses of the mediator and all administrative costs of the mediation, such as the cost of a meeting room, if any, shall be borne equally by the parties.
7. If within 30 days of the appointment of the mediator, the parties do not resolve some or all of the issues in dispute, the parties shall submit those issues in dispute to binding arbitration pursuant to the Commercial Arbitration Act and Commercial Arbitration Code (R.S.C 1985, ch. 17 (2^nd Supp.), as am.)