The Mediation Program provides respondents involved in OSC enforcement proceedings and Enforcement Staff with an option to seek a resolution through a neutral third-party mediator. Mediations are confidential and privileged. The mediator can assist with facilitating the negotiation of settlement terms, determining an Agreed Statement of Facts, and resolving other enforcement issues.
The goal of the program is to resolve outstanding enforcement-related issues or matters in a timely, efficient and cost-effective way.
This program is generally available to any respondent and Staff, and we encourage its use at the earliest opportunity.
Mediations will only occur with the consent of Staff and participating respondents, who must be represented by counsel.
Each party shall pay an equal portion of the total costs of the mediation.
Mediation will not be permitted to negatively impact or delay any investigation or proceeding. It should not be used to delay any parties' disclosure or other pre-hearing obligations or the hearing of the matter.
Once Staff and counsel on behalf of respondents indicate that they wish to engage in the Mediation Program, a mediator is mutually selected from a roster published by the OSC.
Mediation will take place according to the standard terms of a mediation agreement which includes confidentiality clauses signed by all the parties and the mediator. Each party must provide the mediator with briefing documents which will be discussed between the parties and mediator.
Either party may withdraw from and terminate the mediation at any time. The mediator may also withdraw from the mediation at any time.
The mediator can assist in negotiating the terms of a settlement and in resolving other enforcement issues such as reaching an agreement on a particular issue or an Agreed Statement of Facts.
Mediation of a securities enforcement matter is not part of the existing tribunal process set out in the Commission’s Rules of Procedure and Forms (October 31, 2017). A settlement agreement arising from a mediation will have no force or effect unless and until it is approved by the Commission at a settlement approval hearing.
Mediations are facilitated by neutral third parties, who are independent of the Commission. These mediators:
- have general knowledge of securities law and capital markets;
- have securities regulatory enforcement experience as litigation counsel, adjudicator, mediator or judge;
- have mediation experience generally; and
- are free of conflicts of interest, both direct and indirect, at the time of the mediation. That is, they may not represent parties to OSC investigations and proceedings, may not be retained on other matters by the OSC, and may not be associated as an employee, partner or ‘as counsel’ with a law firm or other entity that has dealings with the OSC, either directly or indirectly.
Mediators serve on the Program’s roster for a three-year term. Our current mediator roster (as of June 1, 2018):
- Colin Campbell
- Linda Fuerst
- Kathleen Kelly
- Sydney Lederman
- Joel Wiesenfeld