Terms and Conditions
TERMS AND CONDITIONS – AGREEMENT TO MEDIATE
The Parties: The parties to this agreement are (1) the business which provides goods and/or services which are subject to a complaint by (2) the consumer who has purchased the goods and/or services which are subject to a complaint (“the Dispute”) and Pro Mediate (UK) Limited.
Pro Mediate (UK) Limited, trading as Click2Resolve is an ADR Entity which agrees to provide mediation/alternative dispute resolution (“ADR”) services to the business and consumer.
By notifying the consumer that the business’ nominated ADR Entity is Click2Resolve pursuant to the ADR Directive and/or ODR Regulations and that the business agrees to use Click2Resolve and the consumer submitting a complaint form to Click2Resolve, the parties agree to the following terms and conditions for the provision of mediation/ADR services.
- The Parties hereby appoint Click2Resolve to arrange a mediation on the terms set out below and agree to mediate the Dispute on a date and at a time to be agreed, by telephone and/or email and/or video conferencing for a total period of 1 hour (“the Mediation”) following the Mediation Procedure set out in the Guidance Documents.
- Following the Consumer completing a Complaint Form and emailing it or posting it to Pro Mediate, or providing details of their complaint, Pro Mediate will decide whether the Dispute falls to be dealt with under the terms of the Mediation Procedure set out in the Guidance Documents. Pro Mediate’s decision in this regard will be final.
- If the Dispute falls within the parameters of the scheme, Pro Mediate will allocate a Mediator from its panel of mediators to arrange to follow the Mediation Procedure and to mediate the Dispute between the Parties.
- The mediation process shall last no longer than 28 days from the date of receipt of the Complaint Form or details of the complaint unless otherwise agreed, with a long stop of 90 days in any event.
- At the conclusion of the mediation process, the Mediator shall produce, if requested by a party, a case summary/summary of positions document, which will set out the positions taken by the parties and a suggested resolution of the matter proposed by the Mediator, which will remain confidential save that the Parties may produce this in any subsequent Court proceedings when the Court is considering how to apportion and/or award the legal costs of those Court proceedings after their conclusion on the basis that the document is a “without prejudice save as to costs” document.
- It is agreed that that the Mediator and the Mediation Procedure shall follow:
- the European Mediation Procedure (“the Procedure”) of the International Institute for Conflict Prevention & Resolution (“CPR”) (and when applying or interpreting the Procedure references to be CPR shall be deemed to be references to Expedite Resolution) and
- the European Code of Conduct for Mediators (“the Code”)
- that where the Procedure and the Code conflict the provisions of the Code shall prevail and where the provisions of this Agreement conflict with either the Procedure or the Code this Agreement shall prevail.
- The Parties agree that the Mediation and the entire Mediation Procedure is confidential.
- The Mediation and the entire mediation process, and all negotiations, statements and documents expressly prepared for the purposes of the Mediation, including the Complaint Form and Response Form shall be “without prejudice” unless and until a settlement is reached and reduced to writing (save that it is further agreed that any statement or document prepared for the litigation of the Dispute shall not acquire without prejudice status merely because it was used in the Mediation).
- Neither the Parties or the Mediator may (whether by themselves or an agent) disclose to any person
- any information regarding the mediation process (including pre-process exchanges and agreements and, in cases where a settlement is not reached on the day of the Mediation, continuing discussions and communications between the Mediator and the Parties, or any case summary/summary of positions and recommended resolution document produced at the end of the mediation process by the Mediator) or
- any content (including written and oral information) of the Mediation unless
- it is so agreed in writing among all the Parties and the Mediator,
- it is required by law and ordered by the Court,
- the Mediator reasonably considers that there is a serious risk of significant harm to the life or safety of any person if the information in question is not disclosed; or
- the Mediator reasonably considers that there is a serious risk of his/her being subject or the Company being subject to criminal proceedings unless the information in question is disclosed.
- Whether, where settlement is reached, the settlement terms or outcome of the Mediation are to remain confidential thereafter is a matter for the Parties to negotiate and agree upon.
- If litigation is pending or commenced, the Parties may inform the court of the timing and overall status of the Mediation for purposes of litigation management. The Parties may refer to the case summary/summary of positions document in subsequent Court proceedings when the Court is considering how to award or apportion the costs of those proceedings following their conclusion, on the basis that the document is a “without prejudice save as to costs” document.
- No party shall seek to require the Mediator or the Company to give evidence in any subsequent litigation about the Mediation or the Dispute and any party asked by the court either to give evidence about the Mediation or to procure evidence from the Mediator about the Mediation shall bring to the attention of the court the appropriate provisions of this Agreement.
- Neither the Mediator or the Company shall be liable for any act or omission in connection with the Mediation, other than as a result of its/his/her own wilful misconduct or gross negligence. Further, the Parties agree that any liability the Mediator may have in respect of the Mediation shall be capped at £1 million. For the avoidance of doubt this cap is in respect of the total overall liability for all claims arising directly or indirectly out of or connected with the Mediation and “claim” shall include damages, compensation, interest, costs or any other item of claim.
Conflicts of Interest
- The appointed Mediator has no previous commitments that are likely to significantly delay the expeditious conduct of the Mediation and will ensure that no such commitments are made.
- The Mediator has made a reasonable effort to learn and has/have disclosed to the Parties in writing:
- all business or professional relationships which the Mediator has/has had with any party within the past five years, including all instances in which the Mediator served as a lawyer for any party or adverse to any party;
- any financial interest the Mediator has in any party;
- any significant social, business or professional relationship the Mediator has/had with an officer or employee of a party or with an individual representing a party in the Mediation; and
- any other circumstances that may create doubt regarding the Mediator’s impartiality in the Mediation.
- Each party and its lawyer have made a reasonable effort to learn and has disclosed to every other party and the Mediator in writing any relationships of a nature described above not previously identified and disclosed by the Mediator.
- The Parties and the Mediator are satisfied that any relationships disclosed will not affect the Mediator’s independence or impartiality.
- Notwithstanding such relationships or others which the Mediator and the Parties did not discover despite good faith efforts, the Parties wish the Mediator to serve in the Mediation, waiving any claim based on said relationships, and the Mediator agrees to so serve.
- The disclosure obligations are continuing until the Mediation is concluded. The ability of the Mediator to continue serving in this capacity shall be explored with each such disclosure.
- The Mediator shall not undertake any work for or against a party regarding the Dispute, and pending the Mediation, any other matter.
- The Mediator shall not personally work on any matter for or against a party, regardless of specific subject matter, prior to six months following cessation of the Mediation without the consent of the Parties.
- The Mediator will attempt to resolve the dispute by way of facilitative mediation, with a view to the Parties reaching a mutually agreed resolution of the Dispute.
- The Mediator will not evaluate or determine the Dispute, but upon request by a party, if the Dispute is not settled within the 28 day period allotted to it and 1 hour mediation time, will produce a case summary/summary of positions document, which the Parties will be permitted to refer to in subsequent Court proceedings when the Court is considering how to award or apportion the costs of those proceedings following their conclusion, on the basis that the document is a “without prejudice save as to costs” document.
- Alternatively, after the expiry of 28 days and 1 hour mediation time, the parties may agree to extend the Mediation Procedure upon payment of a further fee.
- The Parties acknowledge that the Mediator will not provide legal advice and to the extent that the Mediator might appear to one or more party to hold an opinion, it must not be interpreted as advice, guidance, or an indication as to the outcome of the Dispute.
- The Parties agree and acknowledge that they will rely on their own representatives or legal adviser(s) for legal advice.
- The Mediator may terminate the Mediation if the Mediator considers it appropriate owing to a conflict of interest or for any reason arising in accordance with the Grounds of Refusal.
- A Mediation shall end if a settlement is reached by the Parties and reduced into writing and signed. No settlement shall be deemed to have been concluded, nor any Settlement Agreement deemed to have been reached unless and until:
- it is reduced into writing; and
- the parties and/or their representatives have indicated their consent to the Agreement in writing. Email confirmation of agreement from both parties is sufficient unless one or other of the parties requests a signed agreement.
- In cases where a settlement is not reached, any continuing discussions and communications between the Mediator and the Parties shall be governed by the terms of this Agreement so that, in particular, the arrangements concerning confidential and without prejudice communications shall continue to apply.
- The Parties shall pay to the Company remuneration for the services provided by the Mediator in connection with the Mediation in accordance with the Table of Charges in the Guidance Document (“the Fees”).
- Each party will pay its own legal costs and disbursements (expenses) in respect of the Mediation.
- Notwithstanding the above the Parties shall be at liberty to agree (and to incorporate into any written Settlement Agreement or Tomlin Order) such terms on costs as they think appropriate;
Proceeds of Crime Act 2002
- The Parties and/or their legal advisers hereby agree and confirm to the Pro Mediate that they have made any or all necessary disclosures relevant to the Proceeds of Crime Act 2002 and that if and insofar as it may be necessary they will indemnify the Mediator (and any Assistant Mediator) against the consequences of any non-disclosure.
Governing Law and Jurisdiction
- This agreement is governed and shall be subject to the law and jurisdiction of England and Wales.
43. The mediation process is voluntary and the Parties are free to terminate the mediation process at any stage. In such a case, Pro Mediate will retain any mediation fees paid (to cover time dealing with the complaint). This does not apply to the consumer in cases involving the following sectors: Legal Complaints, The Gambling Commission and OfCom in which cases there is no fee payable by the consumer in any event.
44. For consumer Mediation concluded at a distance ProMediate (UK) Limited of Brow Farm Top Road Frodsham Cheshire WA66SP telephone number 02036213908 email address firstname.lastname@example.org
The address which complaints should be sent to is the same as above.
The contract may be cancelled within 14 days without giving any reason or incurring any liability during the cancellation period.
However if you ask us to start work within the cancellation period, and to contact the other party or mediate with them, you will be responsible for paying us the reasonable costs of the service.
There are no cancellation rights for services if you ask us to start work in the cancellation period and we have completed the retainer.
Please see attached cancellation form.
You have the right to cancel this contract within 14 days without giving any reason unless you have requested us to start work by contacting the other party or mediating within the 14 day period. The cancellation period will expire after 14 days from the day of the conclusion of the contract.
To exercise the right to cancel, you must inform ProMediate (UK) Limited of Brow Farm To Road Frodsham Cheshire at email@example.com telephone number 02036213908 of your decisions to cancel this contract by a clear statement (eg a letter sent by post, fax or email). You may use the attached model cancellation firm, but it is not obligatory.
To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of your right to cancel before the cancellation period has expired.
Effects of cancellation
If you cancel this contract, we will reimburse to you all payments received from you.
We will make the reimbursement without undue delay, and not later than 14 days after the day on which we are informed about your decision to cancel this contract.
We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement*.
If you requested to begin the performance of services during the cancellation period, you shall pay us an amount which is in proportion to what has been performed until you have communicated to us your cancellation from this contract, in comparison with the full coverage of the contract.
*The exception is credit card transactions, where the reimbursement can only be made to the originating card.
To ProMediate (UK) Limited of Brow Farm Top Road Frodsham Cheshire WA66SP firstname.lastname@example.org telephone 02036213908
I/We [*] herby give notice that I/We [*] cancel my/our [*] contract of sale of the following goods [*]/ for the supply of the following service [*],
Ordered on [*]/ received on [*],
Name of consumer(s),
Address of consumer(s),
Signature of consumer(s) (only if this form is notified on paper),
Date[*] Delete as appropriate.
44. In the event of any complaint, the parties are referred to ProMediate’s complaints process. Consumers may also refer their complaint through the EU platform:- http://ec.europa.eu.odr
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