Guidance document describes the mediation process for any
proceeding before the Competition Tribunal (Tribunal) by a judicial
member of the Tribunal or the Federal Court
Mediation is voluntary, can be scheduled any time during the
proceeding, and may serve to breach an impasse between the parties
before significant litigation costs are incurred
Parties continue to have the option to mediate outside of the
While there will be no obligation to pursue the mediation to a
successful conclusion, any resolution reached will be binding
On June 17, 2016, the Tribunal issued a practice direction on mediation. The direction
provides guidance regarding the request for mediation, the
selection of the mediator, the parties' role in setting the
scope for the mediation, the mediation procedure including
attendance by a client representative authorized to settle, and the
intervenors' role. Any agreement reached will be recorded and
binding, and generally formalized in a consent agreement registered
with the Tribunal.
If the preferred mediator is not available or if the parties
are unable to agree on one, the Tribunal can propose an alternative
judicial member or other Federal Court judge. The latter option
seems to undermine the benefits of having an expert Tribunal
judicial member to act as the mediator.
Although the direction does not limit mediation to the
Tribunal, it also does not clearly state that parties can use
alternative measures to pursue resolution.
By incorporating time for mediation in the case schedule, the
Tribunal's members ultimately assigned to adjudicate the main
hearing will know that the parties attempted to mediate, which may
not be in one or both of the parties' strategic interests.
Finally, any Tribunal-supervised mediation may delay the
proceeding depending on the mediator's availability.
Private parties in Tribunal proceedings will need to consider
these implications before deciding to pursue Tribunal-supervised
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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