ADR Terms of Reference
	Re: Intervention of Ernest G. Tannis as Third Party Neutral
	Re: __________________________________________________________________
	1. I have no personal or Solicitor-Client relationship with any other person involved in the dispute.
	2. It is the hope and intention of all parties to arrive at a freely negotiated full and final resolution and release of all related issues, and engage in a conflict resolution process for the ongoing relationship for conflict prevention and management.
	3. My role is to facilitate a dialogue and to assist all relevant parties, upon advice from their lawyers, to explore all options and arrive at their own mutually-agreed upon resolution on processes designed by them on consensus of the various issues.
	4. In this role, with initial and ongoing acceptance of all parties, and their representatives, as an absolute prerequisite which acceptance may be suspended by any of them at any time, and with co-operation of the parties and their counsel, a mediation approach will be applied to listen to all sides, learn about all legal and factual matters from each person’s perspective, and be sensitive to perceptions and feelings in a neutral manner. I will work with permission at all stages with all parties and their representatives, in this process, and engage in a consultation approach as to all disputes, disagreements, or generally, in issues-management, towards their resolution. Overall, this is intended to be a joint problem-solving exercise for all participants towards a common goal.
	5. All communications with the various players and their legal advisors, will be on a "Without Prejudice" basis so that nothing said or offered up pursuant to these Terms of Reference and in these assisted negotiations in any way, shall be admissible in evidence in any court, legal or other proceedings, adjudicative or otherwise, nor shall I be compellable or subpoenaed by any party of their lawyers or other representatives, or by any other interested or affected person, as witness.
	6. Any meetings that I attend and any content therein, whether verbal or in writing, may be shared with any other party, unless such communication is specifically stated by any party or their lawyer to be given up in confidence; all other parties shall be asked to acknowledge and respect such confidential aspects of these dialogues which everyone agrees, except in such specific exceptions, will and are intended to be otherwise fully open. Of course, all matters of public record, or compellable by law are not subject to such confidences. Any notes made by me are confidential and are merely for the purposes of remembrance to aid the dialogue and to help in drafting a final legal agreement to be reviewed, amended and approved by each party’s own legal counsel after which signing all of my notes will be destroyed; these notes are also not subject to disclosure or subpoena.
	7. The understandings, principles and conditions of these Terms of Reference shall be equally applicable to any meetings between the Neutral and any other stakeholder, interested or affected party or the respective parties by themselves with the Neutral separately or together in any type of group session or in any other circumstances relating to this facilitation process.
	8. These arrangements are purely voluntary and may be terminated at any time by any of the parties, or by the Neutral.
	9. A general guideline and summary description of a step-by-step process together with costs are set out in Appendix "A" attached.
	10. The parties recognize that this process is not a counselling session, and whether or not the dialogue results in a reconciliation between them is a matter which should be dealt with separately.
	Submitted by:			Date:
	Ernest G. Tannis, (Neutral) Mediator
	N.B. The parties and their legal advisors sign. Pending signature, or, in some exceptional cases, if their is no signatures obtained, the following notice applies: "Adherence to and acceptance of these ADR Terms of Reference is hereby confirmed by the participation of this mediation process of the parties, and their legal counsel or other professional advisors, if any."

Mediation Groundrules
	Preamble:
	Twenty-one suggested groundrules (not exhaustive) to be reviewed, at the beginning of the mediation session, which the parties involved commit to. Please note that these groundrules are:
	I.	in no fixed order;
	II.	changeable to be adapted to mediator’s style and disputants’ needs as there are difference schools of thought as to various aspects of this list;
	III.	not "carved in stone", although some fundamental principals are universal such as the mediator not being a decision maker etc.

	The Groundrules
	1.	Thank the parties for giving the mediation process a chance.
	2.	Remind them that mediation is there to assist them in negotiating their own solutions or resolving any differences or disagreements but NOT to make a decision for them. The mediator is not an arbitrator or judge so it is up to the parties to find answers and agree on next stages with the mediators help.
	3.	The mediator does not take anyone’s side but is on the side of everyone coming to some consensus acceptable to the parties who remain in control of their own outcomes.
	4.	The mediator is involved in the process not the content.
	5.	No one is to interrupt the other(s). When someone is talking the other(s) can make notes to help them remember the points they want to respond to when it is their turn.
	6.	Equal time will be given to the complainant/respondent over the course of the mediation.
	7.	The parties need to trust the process and the mediation, and if there are any doubts they need to be expressed and, if necessary, the parties can choose another neutral third party with the help of the present mediator or they can explore another process option more suitable to their needs.
	8.	The process is voluntary; each person is allowed to participate at their own pace knowing that the mediation is in a safe and neutral place.
	9.	Feelings and venting is natural and could occur, but people should try to be dignified in their language and conduct. ADR (Alternative Dispute Resolution) also stands for A Dignified Resolution.
	10.	If any of the parties want to meet separately and alone with the mediator, it is called a caucus (or if lawyers are involved, the same applies to them and their clients and/or the mediator) and they are acceptable. So if a caucus is asked for, which can be done at any time by any of the disputants, no one will wonder what is going on or be suspicious of anything.
	11.	During caucus the parties can speak privately with the mediator and, unless told to the contrary, what is said in caucus can be shared with the other parties involved in the mediation; however, if anyone wants anything to be kept confidential and not to be shared with the others the mediator will respect that and the other parties will also know that this aspect of the confidentiality is part of the process for both the others and themselves.
	12.	Any notes made by the mediator are only to help remember any points to be discussed or to aid the parties in drafting any final written agreement or report to which everyone eventually consents.
	13.	If a legal document is to be signed, the parties are advised to obtain independent legal advice before signing.
	14.	Nothing said in the mediation can be used against the other in any other forum, whether adjudication (arbitration, court) or otherwise. The process is safe also because it is without prejudice – whatever is said in the room, stays in the room. If applicable a terms of reference document has already been signed stating, among other things, that the mediation process is without prejudice, that neither the mediator nor notes taken can be subpoenaed, with damages if that confidentiality is breached.
	15.	Where appropriate, and the parties wish, the mediator can help them along not only in managing the conversation but also brainstorming options and generating solutions.
	16.	Principled not positional negotiations will be encouraged (more elaboration, if required, based on the parties’ knowledge on the negotiation process apart from intuitive understanding).
	17.	Housekeeping (washrooms, beverages, excusing oneself from the room, etc.)
	18.	This is meant to be a collaborative not adversarial problem solving exercise for mutual benefit.
	19.	If anyone feels things are not working out, or it is not worth the time to carry on, or gets frustrated by something that happens or is said, before storming out or stopping the process, please caucus with the mediator first.
	20.	Any questions or comments on the process?
	21.	Who goes first is decided by the parties themselves or if they can’t (unusual) by another process (e.g.., flipping a coin).

Developed by Earnest G. Tannis

Version: January 2001

Permission is granted for reproduction.

Please use appropriate discretion for acknowledgement of source.

The Fighting Fair Guide
Do I Want To Resolve The Conflict? Be willing to fix the problem.
Can I See The Whole Picture Not Just My Own Point Of View? Broaden your outlook.
What Are The Needs And Anxieties Of Everyone Involved? Write them down.
How Can We Make This Fair? Negotiate.
What Are The Possibilities? Think up as many solutions as you can. Pick the one that gives everyone more of what they want.
Can We Work It Out Together? Treat each other as equals.
What Am I Feeling? Am I too emotional? Could I – get more facts, take time out to calm down, tell them how I feel?
What Do I Want To Change? Be clear. Attack the problem, not the person.
What Opportunity Can This Bring? Work on the positives, not the negatives.
What Is It Like To Be In Their Shoes? Do they know I understand them?
Do We Need A Neutral Third Person? Could this help us to understand each other and create our own solutions?
How Can We Both Win? Work towards solutions where everyone’s needs are respected.
Reproduced with permission from: The Australian Conflict Resolution Network.
Excerpted from: "Alternative Dispute Resolution That Works" By E. G. Tannis (Captus Press, York University Campus, Toronto, Ontario Canada 1988).

ADR Contract Provisions
Negotiation:
If a dispute arises out of or emerges in relation to any aspect of this agreement the parties shall negotiate in good faith, to mutually resolve same; should the matter not be settled in this way, the parties shall explore and implement jointly approved appropriate processes of alternative dispute resolution (ADR), enlisting the assistance of one or more third party neutrals (TPN), including, where appropriate, use of mediation.
Mediation:
Should the parties invoke mediation, such process shall be pursuant to the rules of the ADR Institute of Canada Inc. (ADRIC), failing such rules, of the American Arbitration Association .
Arbitration:
Should the matter still not be finalized to mutual satisfaction within 60 days of the dispute first arising (or such shorter or longer period if all parties so agree), either party may invoke the arbitration process pursuant to the rules of the ADRIC, failing such rules, of the American Arbitration Association.
Urgency:
Notwithstanding the foregoing, only in cases of emergency or potential irreparable jeopardy to any legal right or interests, either party may immediately, prior to or concurrently, commence litigation proceedings in the appropriate form.
Continual Negotiation:
However, the parties and their lawyers, during mediation, arbitration, litigation or any other ADR proceedings or any combination thereof, shall continue to negotiate, whenever possible and to continually seek settlement options and processes.
Without Prejudice:
Unless clearly indicated to the contrary by the parties and their legal counsel, or until a mutually legally-binding agreement is arrived at, all negotiations and dispute resolution processes employed shall be considered conducted on a without prejudice basis.
Confidentiality:
Unless required by law, statements made and documents produced pursuant to this ADR clause, including notes, records and recollections of the parties and any neutrals are not otherwise discoverable, are not subject to disclosure through discovery or nay other process and are not admissible into evidence for any purpose, including impeaching credibility, and all sessions are confidential and protected from disclosure for all purposes, and neither the third party neutrals, nor any materials, verbal or written, are compellable by subpoena as witness.
Costs:
If the dispute cannot be mutually settled by the parties within the period referred to above and an adjudication is required, whether by an arbitrator or a judge, the adjudicator in determining the award of costs shall take into consideration whether or not the parties did or did not comply with the spirit, letter and intent of this dispute resolution provision. Unless agreed otherwise and subject to the foregoing, the parties shall pay their own legal and other independent professional costs, but they shall equally share the costs of the TPN and any other costs associated with the application of these ADR Provisions.
Intent:
This ADR clause is meant to assist corporations and individuals in any type of contractual relationship or doing business in North America or internationally to provide a cost effective, collaborative process for the resolution of disagreements without recourse (subject to paragraph D above) to domestic Courts in the Nations, States, Provinces, Territories or other jurisdictional areas where the parties reside, businesses have their head offices or operations.
Developed by Earnest G. Tannis Version: January 2001 Copyright Ernest G. Tannis© 1996-2001 Permission is granted for reproduction. Please use appropriate discretion for acknowledgement of source.