Mediation
June 2016
PRACTICE DIRECTION REGARDING MEDIATION
The purpose of this Practice Direction is to provide guidance on the procedures and other considerations relating to mediation in matters before the Competition Tribunal.
Mediation is a collaborative process in which parties agree to request the assistance of a neutral person in voluntarily reaching a mutually acceptable settlement of issues in dispute. The Tribunal recognizes the importance to all parties of early resolution of issues and the need, as directed by subsection 9(2) of the Competition Tribunal Act, R.S.C. 1985, c. 19 (2nd Supp) to deal with matters as informally and expeditiously as the circumstances and considerations of fairness permit. Consistent with this mandate, the Tribunal provides all parties with the option of participating in a mediation with a judicial member of the Tribunal for the purpose of resolving a proceeding or any outstanding issues. As described more fully below, such mediations will only occur with the consent of all parties to a proceeding before the Tribunal and in accordance with the procedures agreed upon by the parties.
Requesting a Mediation
Mediation is available in all contested proceedings before the Tribunal, including proceedings commenced by a person that has been granted leave under section 103.1 of the Competition Act, R.S.C. 1985, c. C-34. Parties are encouraged to consult with each other, when developing the timetable for the disposition of an application (see Rule 40 of the Competition Tribunal Rules, SOR/2008-141 (“Rules”)) or at another early stage of the proceeding, to assess whether mediation would be appropriate in a given case. In the event that the parties wish to engage in a mediation before a judicial member of the Tribunal, parties should advise the Tribunal during the initial case management conference (see Rule 135) or otherwise communicate their intention to request a mediation to the Registrar of the Tribunal at the earliest opportunity. Where possible, the parties should advise the Tribunal of their agreement to request a mediation prior to the issuance of any timetable for the disposition of the application such that the date for mediation can be reserved by counsel. The request for a mediation should also identify the judicial member whom the parties would want to select as the mediator. Subject to availability, the mediation may be scheduled at any point during the proceeding (e.g., prior to or after completion of examinations for discovery).
Parties should expect that, in all proceedings, the Tribunal will also be proactive in exploring the prospects for mediation during the early and later stages of the case management process.
Selecting a Mediator
Parties are permitted to identify their preferences with respect to an individual judicial member of the Tribunal to act as mediator but are not required to state a preference. The Tribunal will endeavour to accommodate such requests, subject to availability and other considerations. As discussed below, to the extent that a judicial member participates in any mediation, that member would not be entitled to participate in any subsequent part of the proceeding, including the ultimate hearing on the merits, without the express written consent of all parties. In the event that the parties' preferred mediator is not available, or if the parties are not able to agree upon a preferred mediator, the Tribunal will propose an alternate judicial member or other member of the Federal Court to conduct the mediation. In the event that a party or both parties decide not to proceed with the Tribunal’s proposed mediator, they shall inform the Deputy Registrar of their decision and the Deputy Registrar shall advise the Tribunal of that decision without communicating to the judicial members or other members of the Federal Court the identity of the party that declined to proceed or any reasons why one party may have elected to not proceed with the mediation.
Scope of the Mediation
Parties will define the scope of the issues to be addressed in the mediation with the concurrence of the mediator. Parties can agree to a mediation that involves all of the matters at issue in the proceeding, or can confine the mediation to part of the proceeding or to a specific issue that may be determinative of the proceeding.
Procedure to be Followed
The parties are encouraged to agree upon the timing and other steps to be followed in the mediation. Subject to variation by agreement among the parties and with the concurrence of the mediator, the mediation will proceed in accordance with the following procedure:
- there will be no obligation to pursue the mediation process to a successful resolution;
- parties will determine the length and form of mediation briefs, and exchange mediation briefs summarizing the matters at issue, relevant facts, evidence (including relevant documents or other materials) and proposed resolution, and will file such briefs with the mediator in advance of the mediation and in accordance with the schedule determined by the mediator;
- the mediator and parties will participate in a pre-mediation conference to discuss preliminary matters, including potential modifications to the procedure and the schedule for the mediation;
- the mediator will control all procedural aspects of the mediation, including meeting and communicating separately with each party and/or holding joint meetings with the parties;
- in addition to counsel, each party should be represented by a senior executive or other person authorized to negotiate a resolution of the proceeding;
- the mediator will not transmit information received in confidence from any party to any other party or any third party unless authorized to do so by the party transmitting the information; and
- any resolution reached will be reduced to writing and binding.
Either party may withdraw from and terminate the mediation at any time prior to the achievement of a resolution. Other aspects of the procedure to be followed may be agreed upon by the parties, subject to concurrence by the mediator.
Role of Intervenors
Subsection 9(3) of the Competition Tribunal Act permits a person to intervene, with leave of the Tribunal, in any proceedings before the Tribunal. The Tribunal anticipates that the mediation process will be between the applicant and respondent(s), and will not involve intervenors or proposed intervenors. However, where all parties agree, intervenors may participate in the mediation in accordance with the procedure agreed upon by the parties and with the concurrence of the mediator.
Where an Agreement is Reached Through Mediation
When acting as a mediator, the judicial member of the Tribunal has no power to impose a resolution of the proceeding. If an agreement to resolve the proceeding is reached during the mediation, the agreement will generally be formalized in a consent agreement to be registered in accordance with sections 74.12 or 105 of the Competition Act. In the event that the mediation does not result in an agreement, the Tribunal will assume that the parties will continue with the proceeding, subject to being advised otherwise.
Confidentiality of Mediation
The Tribunal recognizes that it is critical for the success of mediation proceedings that they be strictly confidential. In this regard, the mediator, the parties and their representatives shall keep confidential all information disclosed during the course of the mediation. There will be no recording or transcript made of any of the mediation sessions. The judicial member that acted as mediator will not participate in any other aspect of the proceeding, including the hearing, without the express written consent of all parties. Further, the judicial member that acted as mediator will not disclose any aspect of the mediation process to the members of the Tribunal assigned to the matter.
For more information about this Practice Direction, please contact the Deputy Registrar at (613) 954-0857.
Justice Denis Gascon
Chairperson