Rules for the Conciliation of Disputes / Règles de conciliation des différends

Application and scope of Rules

These Rules shall apply to conciliation of disputes arising out of legal relationships, whether contractual or non-contractual, where the parties seeking an amicable settlement have so agreed to refer to these Rules for the purpose intended. The parties may mutually agree to exclude or make any useful amendments to these Rules at any time before the commencement of conciliation proceedings. Where any of these Rules is in conflict with a provision of law from which the parties cannot derogate, that provision prevails. These rules shall not apply where, by virtue of any law in force, certain disputes may not be submitted to conciliation.

Commencement of conciliation

The party initiating conciliation sends to the other party a written invitation to conciliate under these Rules, briefly identifying the subject of the dispute. Conciliation proceedings commence when the other party accepts the invitation to conciliate. If the acceptance is made orally, it is advisable that it be confirmed in writing. If the other party rejects the invitation, there will be no conciliation proceedings. If the party initiating conciliation does not receive a reply within thirty days from the date on which he sends the invitation, or within such other period of time as specified in the invitation, he may elect to treat this as a rejection of the invitation to conciliate. If he so elects, he informs the other party accordingly.

Number of conciliators

There shall be one conciliator unless the parties agree that there shall be two or three conciliators. Where there is more than one conciliator, they ought, as a general rule, to act jointly.

Appointment of conciliator

The parties appoint a conciliator to assist in the settlement of their dispute. They do so by mutual agreement, unless they ask a third person to make the appointment on their behalf. The parties may choose to appoint a panel of conciliators, in which case each party appoints one conciliator, and the two conciliator so appointed appoint the third. If a conciliator must be replaced, the procedure for the appointment of a conciliator applies.

Submission of statements to conciliator

The conciliator may request each party to submit a brief written statement describing the general nature of the dispute and the points at issue. Each party sends a copy of his statement to the other party. The conciliator may request each party to submit to him a further written statement of his position and the facts and grounds in support thereof, supplemented by any documents and other evidence that such party deems appropriate. The party sends a copy of his statement to the other party. At any stage of the conciliation proceedings the conciliator may request a party to submit to him such additional information as he deems appropriate.

Role of conciliator

The conciliator assists the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute. The conciliator will be guided by principles of objectivity, fairness and justice, giving consideration to, among other things, the rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute, including any previous business practices between the parties.The conciliator may conduct the conciliation proceedings in such a manner as he considers appropriate, taking into account the circumstances of the case, the wishes the parties may express, including any request by a party that the conciliator hear oral statements, and the need for a speedy settlement of the dispute. The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute. Such proposals need not be in writing and need not be accompanied by a statement of the reasons therefor.

Administrative assistance

In order to facilitate the conduct of the conciliation proceedings, the parties, or the conciliator with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.

Communication between conciliator and parties

The conciliator may invite the parties to meet with him or may communicate with them orally or in writing. He may meet or communicate with the parties together or with each of them separately. Unless the parties have agreed upon the place where meetings with the conciliator are to be held, such place will be determined by the conciliator, after consultation with the parties, having regard to the circumstances of the conciliation proceedings.

Disclosure of information

When the conciliator receives factual information concerning the dispute from a party, he discloses the substance of that information to the other party in order that the other party may have the opportunity to present any explanation which he considers appropriate. However, when a party gives any information to the conciliator subject to a specific condition that it be kept confidential, the conciliator does not disclose that information to the other party

Co-operation of parties with conciliator

The parties will in good faith co-operate with the conciliator and, in particular, will endeavour to comply with requests by the conciliator to submit written materials, provide evidence and attend meetings.

Suggestion by parties for settlement of dispute

Each party may, on his own initiative or at the invitation of the conciliator, submit to the conciliator suggestions for the settlement of the dispute.
Settlement agreement. When it appears to the conciliator that there exist elements of a settlement which would be acceptable to the parties, he formulates the terms of a possible settlement and submits them to the parties for their observations. After receiving the observations of the parties, the conciliator may reformulate the terms of a possible settlement in the light of such observations. If the parties reach agreement on a settlement of the dispute, they draw up and sign a written settlement agreement.** If requested by the parties, the conciliator draws up, or assists the parties in drawing up, the settlement agreement. The parties by signing the settlement agreement put an end to the dispute and are bound by the agreement. 

**The parties may wish to consider including in the settlement agreement a clause that any dispute arising out of or relating to the settlement agreement shall be submitted to arbitration.

Status and effect of settlement agreement

The settlement agreement shall have the same status and effect as an award, on agreed terms on the substance of the dispute, rendered by a sole arbitrator or an arbitral tribunal.

Confidentiality

The conciliator and the parties must keep confidential all matters relating to the conciliation proceedings. Confidentiality extends also the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.

Termination of conciliation proceedings

1. By the signing of the settlement agreement by the parties, on the date of the agreement; or
2. By a written declaration of the conciliator, after consultation with the parties, to the effect that further efforts at conciliation are no longer justified, on the date of the declaration; or
3. By a written declaration of the parties addressed to the conciliator to the effect that the conciliation proceedings are terminated, on the date of the declaration; or
4. By a written declaration of a party to the other party and the conciliator, if appointed, to the effect that the conciliation proceedings are terminated, on the date of the declaration.

Costs

Upon termination of the conciliation proceedings, the conciliator fixes the costs of the conciliation and gives written notice thereof to the parties. The term "costs" includes only:

1. The fee of the conciliator which shall be reasonable in amount;
2. The travel and other expenses of the conciliator;
3. The travel and other expenses of witnesses requested by the conciliator with the consent of the parties;
4. The cost of any expert advice requested by the conciliator with the consent of the parties;
5. The cost of any assistance provided for the appointment of conciliators or in relation to the requisition of administrative assistance, as per articles () and () of these rules;
6. The costs, as defined above, are borne equally by the parties unless the settlement agreement provides for a different apportionment. All other expenses incurred by a party are borne by that party.

Deposits

The conciliator, upon his appointment, may request each party to deposit an equal amount as an advance for the costs referred to in article 17, paragraph (1) which he expects will be incurred. During the course of the conciliation proceedings the conciliator may request supplementary deposits in an equal amount from each party. If the required deposits under paragraphs (1) and (2) of this article are not paid in full by both parties within thirty days, the conciliator may suspend the proceedings or may make a written declaration of termination to the parties, effective on the date of that declaration. Upon termination of the conciliation proceedings, the conciliator renders an accounting to the parties of the deposits received and returns any unexpended balance to the parties.

Role of conciliator in other proceedings

Unless otherwise agreed by the parties: the conciliator shall not act as an arbitrator in any arbitral proceeding in respect of a dispute that is the subject of the conciliation process; the conciliator shall not be summoned by the parties as a witness in any subsequent arbitral or judicial proceedings.

Admissibility of evidence in other proceedings

The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings: views expressed or suggestions made by the other party in respect of a potential settlement of the dispute; admissions made by the other party in the course of the conciliation process; proposals made by the conciliator; the fact that the other party had indicated his willingness to accept a settlement proposal made by the conciliator.

Praxis Forum Secretariat
Telephone: (514) 569-9238
Internet: http://www.praxis-forum.com   
E-mail: secretariat@praxis-forum.com   

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