13.3.1 This part sets out mediation guidelines.
13.3.2 The mediator's role is to make recommendations on the degree of liability and the amount of any damages. Since the Crown's liability, if any, under the contract is a legal question, departments should consult their legal services before deciding to go to mediation.
13.3.3 A single mediator, rather than a panel, should be appointed wherever possible because it generally results in a more expeditious and economical mediation service. The mediator should be acceptable to both the contracting department and the contractor. Mediators who have knowledge of construction practices and contracts, as well as experience in claims analysis, should be considered.
13.3.4 The "Mediation Agreement" should give the mediator authority to form opinions, make findings, and prepare recommendations about the matter(s) in dispute. The process should not be subject to judicial procedures such as rules of evidence, and the mediator should be allowed reasonable access to information and to employees of both the Crown and the contractor.
13.3.5 The "Mediation Agreement" should make provision for the mediator to:
1. base any opinions, findings, conclusions and recommendations the terms and provisions of the contract;
2. provide any reasonable calculations to support the opinions, findings, conclusions and recommendations;
3. within the time-limit established under the agreement, submit to both parties, a written report containing final recommendations and conclusions.
13.3.6 The mediator may hold hearings at times and places acceptable to the parties and the mediator. If the parties cannot agree, the mediator may, in the interest of due diligence, set any necessary times and locations.
13.3.7 The parties should not be represented by legal counsel at any hearings held by a mediator. If either party wishes to be represented by legal counsel, litigation or arbitration should then be considered.
13.3.8 If either party retains independent experts, the mediator may hear these experts in the presence of the parties and should allow a rebuttal.
13.3.9 Submissions should be made to the mediator in accordance with the following provisions:
1. each party, at its own expense, may call any witnesses and produce any documents that it considers necessary to substantiate its submissions;
2. copies of such documents should be submitted to the mediator within the time limits established under the mediation agreement.
13.3.10 The mediator's fees are to be agreed upon before appointment. Any agreement should provide for reimbursement of travel expenses in accordance with the Treasury Board Travel Policy, and of other reasonable costs incurred during mediation. Provision may also be made for the mediator to obtain expert assistance with the approval of the parties to the contract.
13.3.11 If a party elects to obtain independent expert assistance, that party bears the full costs.
13.3.12 All fees and costs incurred by the mediator are to be shared equally by the parties.