INITIATE

terms and conditions

General Terms and Conditions

1. Key Definitions

1.1 Negotiated Dispute Resolution (NDR)

The voluntary, impartial and confidential process in which parties to a dispute, facilitated by a neutral third party, endeavour to reach a mutually acceptable negotiated settlement.

1.2 Confidentiality Agreement

The legally binding undertaking provided by Dispute Negotiators to be signed by all participants in the NDR Process.

1.3 Commencement and Duration

The NDR Process starts at the first contact between the Mediator and any Party or Attendee and continues through to the point at which the Mediator notifies the Parties that the NDR Process is at an end and continues indefinitely in respect of the contractual obligations of the Agreement to Mediate and the Confidentiality Agreement.

1.4 Pre-engagement Phase

The period during which parties determine if NDR meets their individual requirements.

1.5 Initial Consultation 

The independent discussion that takes place between the Mediator and each Party to explore the suitability of NDR and their potential participation in the process.

1.6 Engagement

The point from which Parties formally agree to enter mediation marked by the signing of the Agreement to Mediate.

1.7 Agreement to Mediate

The legally binding contract between the individual Parties and the Mediator setting out the agreement to mediate and inter-alia the detailed terms, conditions and arrangements for the NDR Process.

1.8 Negotiation and Settlement Session (NSS)

The online or in-person session where Parties, facilitated by the mediator, meet to work through the details of the dispute, the positions and interests of each Party and the options and alternatives available with the aim of reaching a Settlement Agreement.

1.9 Mediator (Facilitator)

The individual provided by Dispute Negotiators who is appointed under the Agreement to Mediate to assist the Parties to reach a mutually acceptable negotiated settlement to resolve the dispute that is the subject of the Agreement to Mediate.  The individual responsible for the management and delivery of the end-to-end NDR Process.

1.10 Party(ies)

An individual, or an authorised representative of a business or organisation, seeking to resolve a dispute who has committed to participation in the NDR Process by signing the Agreement to Mediate.

1.11 Participant/Attendee

A person who is not a Party and attends within the NDR Process such as a colleague, supporter or legal or other professional advisor. 

1.12 Joint Session

A meeting during the Negotiated Settlement Session attended by the Mediator, both Parties and all nominated participants.

1.13 Individual Session

A private meeting during the Negotiated Settlement Session attended by the Mediator and one Party only and their nominated participants.

1.14 Settlement Agreement

The legally binding contract, prepared by the Parties who have participated in NDR, that includes all the detail, necessary arrangements and terms and conditions required to settle the dispute by mutual agreement.

2. Dispute Negotiators

2.1 Dispute Negotiators will provide:
  • A suitably qualified and accredited Mediator.
  • An Information Pack outlining the nature, purpose, and key principles of NDR and an explanation of how the process will be carried out.
  • A single Initial Consultation for each party.
  • A three-step NDR Process.
  • A secure and confidential online facility for the conduct of the Negotiated Settlement Session (NSS).
2.2 Neither Dispute Negotiators nor any employee nor any representative of Dispute Negotiators shall:
  • Act for any of the Parties in the dispute.
  • Offer expert advice whether legal, financial or otherwise.

3. The Mediator

3.1 The Mediator shall:
  • Be suitably qualified and accredited by one of the main UK or Ireland accrediting bodies.
  • Be sufficiently competent and experienced to undertake the NDR engagement to which they are assigned.
  • Make such enquiries as are reasonable to determine they have no actual or potential conflict of interest and where this is the case or any doubt exists, they will inform the Parties and withdraw from the NDR Process.
  • Act at all times in accordance with the principles of impartiality, integrity, fairness, confidentiality and with respect for all Parties involved in the NDR Process.
  • Not act neither as a Judge nor an Arbitrator nor an Adjudicator nor Conciliator.
  • Not decide or indicate either who is right or who is wrong or decide the outcome of the NDR Process.

4. The Role of the Mediator

4.1 The Mediator shall be responsible for:
  • Fulfilling their obligations in respect of the confidentiality of the NDR Process.
  • Fulfilling their obligations under the Agreement to Mediate.
  • The overall management of the NDR Process.
  • Ensuring that all Parties are fully aware of their right to access legal or other professional advice and their (the Parties’) responsibility to procure such advice as and when they require it.
4.2 The Mediator shall provide:
  • Information to assist all parties in their understanding of NDR.
  • All Parties with a draft Agreement to Mediate for review and signature prior to the commencement of the formal stage of the NDR Process.
  • All Parties and all other participants (including legal and other professional advisors) with a Confidentiality Agreement for their signature; fully binding them to the undertakings therein.
  • Neutral guidance in response to queries on process.
  • Impartial challenge to Parties as to their positions, assumptions, options and alternatives with the aim of reaching a realistic and workable solution.
  • Facilitation in the drawing up of any Settlement Agreement.

5. The Parties

5.1 The Parties shall be responsible for:
  • Fulfilling their obligations in respect of the confidentiality of the NDR Process.
  • Fulfilling their obligations under the Agreement to Mediate.
  • Declaring themselves, or nominating suitable individuals, to be fully authorised to take part in NDR (and specifically the Negotiation and Settlement Session) and to make binding decisions and undertakings.
  • Jointly providing suitable facilities to host the Negotiated Settlement Session where they elect not to utilise the secure online service provided by Dispute Negotiators.
5.2 The Parties shall provide:

• A Case Summary to the Mediator.
• Such additional information or documentation as is material to the dispute and is reasonably requested by the Mediator.

6. The NDR Process

6.1 The NDR Process will comprise the three main steps of: (1) Initiation, (2) Preparation and (3) Negotiation and Settlement Session.

6.2 The Initiation and Preparation steps will include dialogue and the exchange of information and communications by email, telephone and video calls; no in-person meetings will take place during these steps unless considered necessary by the Mediator and agreed by the Parties.

6.3 It is important that all Parties recognise the Mediator’s neutral role and trust the impartiality of the Mediator. Where the Mediator requires to communicate with one Party they may do so with or without the knowledge of the other Party and as frequently as is required to further the NDR Process.

6.4 The Negotiation and Settlement Session will be convened either online or in-person and will comprise as many Joint or Individual Sessions as deemed appropriate and necessary by the Mediator and agreed by the Parties in pursuit of a Settlement Agreement.

6.5 Sufficient opportunity will be provided to allow all participants to seek and secure any legal or other professional advice they may require.

7. Facilities

7.1 Dispute Negotiators will provide secure and confidential online facilities for the conduct of the Negotiated Settlement Session, providing all participants with the necessary details in advance of the session, to include:

  • Date, time and outline format.
  • Specifications for the online platform to be used and standard operating guidelines.
  • Registration and login details.
  • Procedures to be followed and alternative arrangements in the event of technical or communication difficulties.

7.2 All participants will ensure that their arrangements for online participation meet the following minimum standards:

  • They are familiar with the technology and facilities proposed and are competent in their use (or have requested additional guidance and assistance in advance of participation).
  • Their internet connection is sufficient to participate in the session; including the exchange of documents where required.
  • Their computer, audio/visual and all other equipment is sufficient to participate in a lengthy online session where they can be adequately seen and heard and there are no distractions arising from their location or surroundings.
  • Their location is secure and sufficiently discrete so as not to compromise the confidentiality of the NDR Process.

7.3 Where the Parties elect to provide facilities, such facilities will:

  • Be sufficiently secure in respect of location and physical layout to allow for the discussion of confidential matters without Parties or individuals being overheard or otherwise disturbed.
  • Include a room capable of hosting any Joint Sessions where the Parties, the Mediator and other anticipated participants are all present.
  • Include two further rooms, one for each Party and their advisors where they can conduct private and confidential discussions and host the Mediator for Individual Sessions.

7.4 Where the Parties anticipate they will be unable to provide facilities to the standard outlined at para 7.3, they must inform the Mediator well in advance of the Negotiation and Settlement Session to allow for alternative arrangements to be made.

8. Participation, Attendance and Withdrawal

8.1 The key participants in the NDR Process shall be the Mediator and those identifying as the Parties.

8.2 Parties may also be assisted during Initiation and Preparation and accompanied at the Negotiated Settlement Session by their choice of colleague, supporter or legal or other professional advisors.

8.3 Participation in the NDR Process shall be voluntary at all times and any Party or the Mediator may leave at any time.

8.4 Where the Mediator takes the decision to withdraw, they will give notice to the Parties in writing stating the general reasons for their withdrawal.

9. Fees and Expenses

9.1 The fee for the assignment will be split evenly between parties unless otherwise agreed and each party will be responsible for settlement of their share.

9.2 Payment of fees will be due as follows:

9.2.1 Initial Consultation – No fee.
9.2.2 Up to the signing of the Agreement to Mediate – No fee.
9.2.3 Where Parties have signed the Agreement to Mediate and subsequently withdraw from the NDR Process at any stage up to 12.00 midday on the day prior to the date notified for the Negotiated Settlement Session – 25%
9.2.4 From 12.00 midday on the day prior to the date notified for the Negotiated Settlement Session – 100%

9.3 Payment of the Fee at para. 9.2.4 will be due no later than 12.00 midday on the day prior to the date notified for the Negotiated Settlement Session.

9.4 Where any or all parties withdraw as per para 9.2.3, all parties will be liable to make payment of 25% of their share within 7 days.

9.5 Payment of the Fee is not contingent upon the outcome of the NDR Process.

10. Confidentiality

10.1 All aspects of the NDR Process are Confidential and the Parties and Mediator will sign a Confidentiality Agreement as part of the Agreement to Mediate.

10.2 All other Participants in the Negotiation and Settlement Session will be required to sign the Confidentiality Agreement provided by Dispute Negotiators.

10.3 Where additional Participants or Attendees arise, their participation will be conditional upon their signing the Confidentiality Agreement.

10.4 The Parties shall use their best endeavours to ensure that all such persons comply with the terms of the Confidentiality Agreement.

10.5 Additionally, all private communications or matters discussed between the Mediator and a Party or information provided by a Party during an Individual Session will remain confidential unless the Party concerned grants explicit permission for the Mediator to share such.

11. Exceptions to Confidentiality

11.1 Confidentiality shall not apply where disclosure is:

  • Necessary to implement or enforce a Settlement Agreement.
  • Necessary where Parties require to obtain legal or other professional advice and any such advisor is bound by an obligation of confidentiality.
  • Necessary to prevent physical or psychological injury to a party.
  • Required by law.
  • Necessary in the interests of preventing or revealing the commission of a crime (including an attempt to commit a crime), the concealment of a crime or a threat to a Party.
  • Sought or offered to prove or disprove a civil claim concerning the negligence or misconduct of the Mediator occurring during the NDR Process or a complaint to a professional body concerning such negligence or misconduct.

12. Information Privilege

12.1 The parties agree that any information provided or discussion that occurs during the NDR Process will not be used in any further proceedings, legal or otherwise. However, evidence introduced into, or used in the NDR Process, that is otherwise admissible or subject to discovery in proceedings outside of the NDR Process shall not be or become inadmissible or protected by privilege in such proceedings solely because it was introduced into or used in the NDR Process.

12.2 Where Parties are in any doubt in respect of para 12.1, they must seek their own legal advice.

13. Record Keeping and Notetaking

13.1 The Mediator shall open, maintain and retain a confidential and secure case file in accordance with the Dispute Negotiators Privacy Policy. Such notes that are taken by the Mediator or records of the contents of flipcharts/whiteboards from the Negotiated Settlement Session shall be held in this case file.

13.2 Parties are encouraged to take the minimum notes required to assist them in their participation in the NDR Process.

13.3 Parties are to destroy or secure such notes at the conclusion of the NDR Process in a manner that meets their obligations under the Confidentiality Agreement.

13.4 There shall be no recording or verbatim transcript of any call, conversation or in-person/online meeting at any stage of the NDR Process.

13.5 During the Negotiated Settlement Session:

  • Except as agreed by the Mediator, all devices present in whatever location and capable of recording must be turned off.
  • All Participants agree not to make use of any recording hardware, software or screen capture facilities or to instruct others to do so.

14. Exclusion of Liability

14.1 The Parties acknowledge that the role of the Mediator is to use their experience and skill in facilitating a potential settlement of the dispute between the Parties. The decision on whether to reach a Settlement Agreement or not rests exclusively with the Parties concerned.

14.2 The Parties agree not to hold the Mediator or Dispute Negotiators liable for any act or omission in the services provided by the Mediator or Dispute Mediators under these terms unless such act or omission was in bad faith.

15. Jurisdiction

15.1 Notwithstanding the location or legal status of the Parties; these terms shall be construed in accordance with the law of Northern Ireland and parties submit to the exclusive jurisdiction of the courts of Northern Ireland.