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ARBITRATION RETAINER AGREEMENT
1. BACKGROUND AND PARTIES
The Parties ______________(the Claimant) and _______________, (the Respondent)have agreed to appoint Joseph Wamback Q. Arb, as an arbitrator (Arbitrator) in the current pending dispute. The Parties agree that the cost of arbitration shall initially be shared by the Parties but those costs shall be subject to a future order in the discretion of the Arbitrator. The Parties agree that they are liable for the Arbitrators fees and each opposing Party will be responsible for an equal share of the said fees together with reasonable disbursements incurred by the Arbitrator and applicable HST, which may be invoiced from time to time. Any award of costs by the Arbitrator shall not affect each Parties responsibility to pay the Arbitrators accounts.
The Parties understand and agree that the Arbitrator shall act in a strictly neutral capacity as a decision maker and not as a mediator or advocate for either Party.
The Arbitrator has made a reasonable effort to learn and has disclosed to the parties: a) all business or professional relationships the Arbitrator and/or the Arbitrators firm has had with the Parties or their law firs within the past three (3) years; b) Any financial interest the Arbitrator has in any Party; and c) Any other circumstances that may create doubt regarding the Arbitrator’s impartiality in the arbitration. Each Party and its law firm has made a reasonable effort to learn and has disclosed to every other Party and the Arbitrator any relationships of a nature described in this paragraph not previously identified and disclosed by the Arbitrator. The Parties and the Arbitrator are satisfied that any relationships disclosed pursuant to this paragraph will not affect the Arbitrator’s independence or impartiality. Notwithstanding any such relationships, the Parties have chosen the Arbitrator to serve in arbitration, waiving any claim based on such relationships; and the Arbitrator agrees so to serve.
4. FUTURE WORK:
Neither the Arbitrator nor the Arbitrators firm shall undertake any work for or against any party regarding the subject matter of the arbitration. The Arbitrators firm may mediate or arbitrate other unrelated matters involving one or more of the Parties following the pendency of the arbitration and will disclose same to the Parties.
Fees for services by the Arbitrator will be determined by the number of hours (or portion spent) on the matter plus expenses. The Arbitrator will bill on this basis for all time spent on the matter including initial contacts, electronic communications and telephone conferences, travel, reviewing submissions and other material in preparation for the hearing, hearing, post hearing deliberations and preparation of awards and reasons thereafter. The Arbitrator will charge an hourly rate of $ _________ per hour plus applicable HST, which rate will remain in effect for the duration of the arbitration. The Arbitrators time is billed in one tenth hour increments. Case management services are chargeable at the Arbitrators hourly fee. Expenses such as conference rooms, and meal charges long distance telephone charges transportation or copying charges will be billed at cost which in some cases may be estimated. Interim invoices may be prepared monthly and are payable on receipt. Other personal, such as paralegals, law students, clerks or recorders may be utilized to perform certain tasks such as research that the Arbitrator would otherwise be required to perform. Such personal will be billed and lower reasonable rates.
6. CANCELLATION POLICY:
If a scheduled arbitration hearing is cancelled more than seven (7) days before a session, deposits made for fees are refundable, except to the extent that Arbitrator preparation or other personnel time has already been incurred. Scheduled arbitration dates cancelled or rescheduled with less than seven (7) days notice will incur cancellation charges based upon an eight hour day for the first day reserved plus one third (1/3) of each later booked day t a maximum of four (4) additional days booked.
7. ADVANCE PAYMENT:
The Parties have agreed to share the Arbitrators fee and expenses as follows: The Parties pay an advance deposit, as estimated by the Arbitrator for fees and expenses set aside for the hearing. The Parties agree that this is an estimate only, and the Parties are responsible for all fees and expenses incurred by the Arbitrator. As described in paragraph 1, two thousand five hundred dollars ($2,500.00) deposit is to be given by each opposing Party as an advance amount prior to commencement of the case. All advance deposits not billed will be returned at the conclusion of the arbitration. If the advance deposit is exhausted prior to the completion of the arbitration the Parties may be asked to replenish the account. The Arbitrator reserves the right to suspend the proceedings in the event that any invoices are unpaid. The arbitration award shall not be released to the Parties until the accounts of the Arbitrator are paid.
8. DISQUALIFICATION OF ARBITRATOR AS WITNESS AND EXCLUSION OF LIABILITY:
The Parties agree not to call the Arbitrator as a witness or as an expert in any pending or subsequent litigation or arbitration involving any of the Parties to the arbitration. The Parties agree that neither they, nor any solicitor acting now, or hereafter, on behalf of any Party, will take any steps or invoke any legal process, for the purpose of compelling the Arbitrator to produce any documents or testify in any forum concerning any recollection whatsoever about any documents or utterances produced or made in connection with the arbitration proceedings unless the same is compellable on the grounds entirely independent of, and apart from, the holding of this arbitration process. The Parties agree defend and/or assume the costs and lawyers fees of defending the Arbitrator from any subpoenas from third parties arising out of this agreement or the arbitration and will indemnify the Arbitrator from all costs arising from breach of this agreement. The Parties agree that the Arbitrator will have the same immunity from liability for any act or omission in connection with the arbitration as judges have under applicable law.
This Arbitration Retainer Agreement may be executed in counterparts, each which shall constitute an original, but all of which shall constitute one and the same agreement and delivery of an executed signature page by any Party by electronic transmission will be as effective as delivery of a manually original executed copy of such party. Agreed to and accepted by the Parties by their respective lawyers.
TYPICAL AGREEMENT TO ARBITRATE
We, the undersigned parties, hereby agree to submit to final and binding arbitration under the arbitration rules of the ARBITRATION ACT, S. O. 1991 the following controversy:
(briefly describe the controversy)
We further agree that the above controversy be submitted to (one or three) arbitrator(s) from a panel of arbitrators in accordance with the agreement attached hereto.
We further agreed that we will faithfully observe this agreement and the rules and that we will abide by and perform any award rendered by the arbitrator(s) and that a judgement of the court having jurisdiction may be entered upon award.
Signed on this ___day of ____ , _______ at ________________
THIS AGREEMENT, made this ____ day of _____, 20___
In the matter of the Arbitration Act, S. O. 1991
And in the matter of an arbitration between;
WHEREAS, The Claimant ________________ (hereinafter referred to as xxxxxxxxxx) was awarded a contract as a General Contractor for the construction of a ____________________ ) hereinafter referred to as ____________). The said contract being awarded to _______________ on ___________ with construction to take place in the year _____________, construction having been substantially completed and there are disputes between the parties as to what monies remain due and owing to ______ _______ from __________.
AND WHEREAS the contract between the parties hereto provided for dispute resolution by way of arbitration in accordance with Ontario’s Arbitration Act S. O. 1991 ) hereinafter referred to as the Arbitration Act.
AND WHEREAS ___________ has asked for Arbitration and the parties wish to by this agreement elaborate upon and provide for additional terms related to the proceedings of the Arbitration, additional to that which is contained in the Arbitration Act and in the original contract.
IT IS PROVIDED AS FOLLOWS, in consideration of the mutual covenants contained herein, the parties hereby agree to as follows:
1. The parties confirm the following appointments:
a. ____________, as an expert arbitrator appointed by ______________.
b. ____________, as an expert arbitrator appointed by ______________.
c. ____________, appointed by the above named arbitrators as Chairman of the Tribunal.
2. The Tribunal shall determine all matters in dispute between the parties arising out of the contract which are properly subject to Arbitration pursuant to the contract and subject to Schedule “A” herein.
3. The parties agree to be bound by all the terms of this agreement; and to be bound by the rules, orders directions and decisions of the Tribunal respecting the procedure and conduct of the Arbitration as determined by them from time to time pursuant to the terms of this Agreement subject to this Agreement, the provisions of the contract, and the provisions of the Arbitration Act and such further agreement as the parties may make between themselves in writing.
4. The parties agree that the awards of the Tribunal shall be final and binding upon them, subject only to appeal on a question of law to the Ontario Court (General Division), which appeal may be brought by either party without requiring the leave of the court.
5. This agreement is binding upon the parties when signed by them or by their solicitors on their behalf. By so signing, the solicitors warrant their authority to do so on behalf of their clients.
6. The Tribunal shall have the power, in its sole discretion, to award costs of the Arbitration in accordance with the Arbitration Act, and to direct by whom they are to be paid; and to award interest on awarded sums in accordance with the provisions of the contract (including General Conditions 40) and of the Arbitration Act as it incorporates provisions of the Courts of Justice Act. After the award has been made including any interest, the parties shall be entitled to make submissions on costs with costs to be fixed by the Tribunal.
Typical Mediation Agreement
AGREEMENT TO MEDIATE AND TERMS OF MEDIATION
The parties agree to mediate with ____________________, a mediator to attempt to settle their dispute in relation to the above-noted matter.
1. The Mediator is a neutral facilitator who will assist the parties reach their own settlement. The Mediator will not make decisions for the parties on how the matter must or should be resolved.
2. All written and oral communications made in the course of the mediation will be treated as confidential and without prejudice. Therefore:
a) The parties to this agreement agree that all communications and documents shared that are not otherwise discoverable will be shared on a without prejudice basis and will not be used in discovery, cross-examination, at trial or in any other way, in this or any other proceeding.
b) The parties agree that all communications at the mediation and documents shared that are not otherwise public will be kept confidential from anyone who is not a party to the mediation. Everyone signing this document, whether or not a party to the litigation, agrees to be bound by this confidentiality provision of this agreement. Any individual signing on behalf of a corporation represents that he or she has authority to bind all members of the corporation to the confidentiality provisions in this agreement.
c) The Mediator will not reveal the names of parties or anything discussed in Mediation except:
i) to the lawyers or other professionals retained on behalf of the parties as deemed appropriate or necessary by the mediator;
ii) to non-parties consented to in writing by the parties, as deemed appropriate or necessary by the mediator;
iii) for research or education purposes, on an anonymous basis;
iv) where ordered to do so by a judicial authority or where required to do so by law; v) where the information suggests that there will be actual or potential threat to human life or safety, or the commission of a crime in the future.
3. The parties agree that they will not at any time, before, during, or after mediation call the Mediator or anyone associated with Canadian Mediation Association as a witness in any legal or administrative proceedings concerning this dispute. To the extent that they may have a right to call the Mediator or anyone associated with Canadian Mediation Association as a witness, that right is hereby waived. If the foregoing provisions are found to be unenforceable, the parties agree to pay the then applicable hourly rate of the mediator for the time that the Mediator spends dealing with such issues. If a party decides to subpoena the Mediator, notwithstanding the above, the Mediator may move to quash the subpoena. That party agrees to reimburse the Mediator for whatever expenses he or she incurs in such an action, including lawyer fees, plus the then applicable hourly rate of the Mediator for time that is taken to deal with this matter.
4. The parties agree not to subpoena or seek any Court Order or use any other legal process in an attempt to demand the production of any records, notes, work product or the like, of the Mediator in any legal or administrative proceedings concerning this dispute. To the extent that they may have the right to demand these documents, that right is hereby waived. If the foregoing provisions are found to be unenforceable, the parties agree to pay the then applicable hourly rate of the mediator for the time that the Mediator spends dealing with such issues. If a party decides to subpoena the Mediator, notwithstanding the above, the Mediator may move to quash the subpoena. That party agrees to reimburse the Mediator for whatever expenses he or she incurs in such an action, including lawyer fees, plus the then applicable hourly rate of the Mediator for time that is taken to deal with this matter.
5. Any party calling the Mediator as a witness, issuing a subpoena against the Mediator or seeking production from the Mediator waives his/her/its right to rely upon and enforce the confidentiality provisions of this agreement as against the Mediator.
6. Notwithstanding the above, this Agreement to Mediate and any written agreement made by the parties as a result of mediation, may be used in any relevant proceeding, unless the parties make a written agreement not to do so.
7. The Mediator shall not be liable for anything done or omitted with respect to the Mediation and has the immunity granted to a Judge under the legislation in place in the jurisdiction in which the Mediator resides and the jurisdiction in which the mediation takes place.
8. While all parties intend to continue with mediation until a settlement agreement is reached or all parties conclude that there is no likelihood of a settlement agreement being reached, any party may withdraw from mediation at any time.
9. If the Mediator determines that it is not possible or appropriate to continue the mediation, the Mediator may terminate the process.
10. The parties may have lawyers present at the mediation. The Mediator will not provide legal representation or legal advice to any party at any time, and has no duty to assert or protect the legal rights and responsibilities of any party, to raise any issue not raised by the parties themselves, or to determine who should participate in the mediation.
11. The parties or those representing them at the mediation have authority to settle the dispute.
12. Where an agreement is reached, the parties or their lawyer will draft any settlement documents, or Minutes of Settlement and any releases.
13. The account for the Mediator’s fees, disbursements and administrative costs will be:
(a) split evenly among the parties.
(b) shared fifty percent (50%) by the Plaintiff and fifty percent (50%) by the Defendant.
(c) shared fifty percent (50%) by the Plaintiff and fifty percent (50%) between all Defendants; the Defendants share will be divided equally among them.
(d) paid one hundred percent (100%) by the Plaintiff. (e) paid one hundred percent (100%) by the Defendant.
14. The parties and their lawyers hereby acknowledge that notwithstanding the above-noted direction as to the payment of the account, they remain jointly and severally liable for payment of the account pursuant to Rule 13(2) of the Mediation Rules of Canadian Mediation Association*.
I have read, understand and agree to the provisions of this Agreement signed the day____/month______/year_________.