As a general rule, the conciliation agreement is also signed by the Ombudsman, which opens the possibility of bringing an action against the ombudsman for breach. In addition to the fact that the Ombudsman violates the explicit conditions of a conciliation agreement (if he must carry out his duties competently, impartially, diligently, etc.), there will also be a tacit clause according to which the Ombudsman will provide his services with appropriate competence and diligence. A federal court may, of course, remain competent for the application of a transaction agreement according to the doctrine of ancillary jurisdiction12, 13 A federal court may, therefore: 1) retain jurisdiction to the extent that the parties require jurisdiction, 2) fully oppose the exercise of the ancillary jurisdiction or 3) change the scope of the subsidiary liability sought by the parties.13 Assuming that the Tribunal decides to retain jurisdiction for the performance of the settlement contract , it must decide how long it will last. Failure to comply with the mediation agreement can have many consequences for all parties involved. The purpose of mediation is to reach agreement on a dispute rather than go through a trial. This may be a more economical and faster option than going to court if you can work with a mediator. If you do not reach an agreement or if you do not respect the agreement, it is important to know what the next steps will be. Practical note: any informal agreement reached at the conciliation, which envisages the implementation of a more formal transaction agreement at a later date, should specify that the informal agreement is not binding. If the parties do not clarify it, it is likely that the courts will implement the informal agreement. A party may take steps to reduce the risk that transaction agreements will be cancelled or terminated due to misrepresentation. This may take the form of a clause stating that all essential conditions are included in the agreement and that no guarantees not included in the agreement have been given. In light of Clay, it is also important that the parties carefully analyze and review all the information that will be obtained through mediation.
This may include an independent review of the relevant information or a request for additional evidence to motivate it. If the parties do not reach an agreement on mediation, they should take an appropriate approach. During this period, the Ombudsman will act in the role of a fictitious courtroom. He or she will consider all the evidence that would be presented if the case had been tried. While the circumstances in which a duty of care is due may differ, the starting point of liability generally requires sufficient proximity between the parties and, in all circumstances, it is fair, equitable and appropriate to impose a duty of care. When a consultation is given, this can lead to sufficient closeness between the mediator and the parties. This is why no reasonable mediator will ever advise a party in mediation. The standard mediation agreement signed by the Ombudsman and the parties before entering mediation will include without exception an immunity clause of the Ombudsman, which will try to exclude the Ombudsman`s responsibility. However, such a clause is subject to general principles of law which cannot exclude liability in the event of fraud and which, depending on the circumstances of the case, may also be subject to legal control of exclusion clauses.