Download: Mediation Agreement Form
Should the British Franchise Association (bfa) be contacted by a party involved in a dispute between a bfa franchisor and one or more franchisees of its franchised network, and that party wishes to use the bfa Mediation Scheme, the following procedure will be followed:
- The bfa will ask the party requesting the referral to mediation to confirm in writing that it has attempted to resolve the dispute directly with the other party and that this has proved unsuccessful. The referral to mediation cannot proceed until such confirmation is received. The bfa also reserves the right to decline to refer a dispute to mediation without giving reasons.
- The referring party will be requested to complete the bfa’s mediation application form and to provide the following details:
- the names, addresses, telephone, fax and e-mail numbers of the parties
- a brief description of the dispute, the issues and a summary of the evidence
- details of the parties’ legal representation (if known or at all)
- brief details of the attempts to resolve the dispute to date and whether mediation has been discussed and agreed by the parties
- On receipt of an appropriately completed application form, the bfa will contact the referring party or parties acknowledging receipt. If the application form has not already been completed by the other party or parties, the application form will then be referred to the other party or parties for completion.
- On receipt of the fully completed mediation application form, the bfa will contact each of the parties to:
- briefly discuss the dispute
- provide details of the procedure to be followed
- establish whether or not the dispute is already the subject of court proceedings and also establish whether there are any time limits or deadlines imposed by a court or other party
- identify any other issues or matters which should be made known or require urgent attention
- The bfa shall appoint a mediator from the bfa’s Mediation Scheme’s mediator panel taking into account the mediator’s experience and geographical location. Such appointment shall be at the absolute discretion of the bfa and a copy of the mediator’s curriculum vitae will be sent to each party.
- Following the mediator’s appointment the parties must notify the bfa immediately:
- if there is any reason why they believe it is not appropriate for the mediator to act in the mediation. The bfa will change the appointment only if a good reason for doing so is substantiated (for example, a conflict of interest);
- with several convenient dates (in the next three to four weeks) for the mediation meeting to take place and, if the Mediator’s offices are not to be used, indicate a preferred choice of venue. Ordinarily the Mediation will be held at the Mediator’s offices.
- On receipt of the above information the bfa will contact all of the parties (including the mediator) to establish a suitable date, time and venue for the mediation. The parties should thereafter confirm to the mediator the number of persons attending and their status and titles.
- The bfa will discuss costs with the parties. The fees for the mediation are set out in the mediation agreement. If the mediation is likely to exceed the allocated time for the mediation meeting, the mediator will speak with the parties and agree a way forward on the following bases:
- whether the mediation should continue, be adjourned or terminated
- the additional fees to be paid if the mediation meeting is to continue on the same day or on a different occasion
- if appropriate, a date, time and venue for a further mediation meeting
- The mediation fees shall be paid to the bfa, wherever practicable, prior to the mediation meeting and prior to any further mediation meeting. Unless the parties agree otherwise, the costs and any expenses of the mediation will be split equally between the parties in dispute. However, the parties in dispute may agree how the costs will otherwise be split between them and this will be acceptable to the bfa provided that payment in full is received by the bfa prior to the mediation meeting or meetings. The time allocated for the first mediation meeting will be established and agreed in discussions between the bfa, the mediator, and the parties in dispute.
- The parties must complete and return the attached mediation agreement. This shall be signed by the parties in dispute and returned with the mediation fee prior to the start of the mediation meeting. The mediation cannot proceed until the completed and signed mediation agreement has been returned to the bfa and the mediation fees paid in full.
- As soon as the bfa have confirmed with the mediator and the parties in dispute, the time, date and venue of the mediation and the fees have been paid, the parties in dispute will be requested to prepare a position statement, setting out the details of the dispute, the reasons for the non-resolution of the dispute and what each party to the dispute hopes to achieve from the mediation. The position statement and any accompanying documentation will be exchanged between the parties in dispute and copies will be provided to the mediator. The mediator will then try to identify the principal issues and areas of dispute prior to the mediation. The parties in dispute will also be requested to set out in separate statements their minimum and maximum ‘settlement positions’ which they must send to the mediator only, in absolute confidence, prior to the mediation.
- The mediator will be encouraged to contact the parties prior to the mediation to discuss briefly any issues or concerns that the parties may have concerning the mediation process. The mediator may also request that the parties in dispute prepare additional documents or provide further information.
- The mediation will then take place on the appointed day. As soon as is practicable thereafter, the mediator will inform the bfa in writing whether or not the mediation has been successful. Mediation fees for any further mediation meeting must be paid, where practicable, to the bfa prior to the meeting.
- The mediator will respect the confidentiality of the parties to the mediation at all times.
- Please be assured that the whole process and the mediation will be treated in the strictest of confidence.