Mediation - A guide for the parties involved
Nkom has been assigned the role of mediator in order to help find agreement in disputes between providers. The mediation service covers all disputes between providers, where these relate to obligations resulting from, or pursuant to the Electronic Communications Act. This implies that other types of disputes between providers (e.g. disagreement on private legal obligations) are not covered by the mediation service.
The mediation service is authorised by Section 11-1 of the Electronic Communications Act:
Section 11-1. Mediation in conflicts between providers
In conflicts between providers concerning obligations resulting from or in pursuance of this Act the Authority may on request by one party mediate to obtain agreement between the parties. The Authority may after consultation with the parties set deadlines and other terms and conditions in connection with the mediation. The Authority may break off the mediation at any time. The mediation period shall not exceed four months.
That a matter has been brought before the Authority pursuant to the first paragraph does not preclude leave for action before ordinary courts of law. Section 27 b of the Public Administration Act does not apply.
The Authority may issue regulations on mediation.
No specific regulations on mediation have been given.
2. A voluntary process
Mediation is based on establishing a voluntary, non-binding process with a neutral third party, i.e. Nkom, as the mediator. The mediator must endeavour to help the parties agree on a solution to the current dispute. The primary responsibility for reaching an agreement rests with the parties. Nkom’s task is first and foremost to help the parties reach agreement, so that they can sign an agreement.
3. Conditions for mediation
Th parties are not entitled to mediation under law. Nkom will make an overall assessment to determine whether it is appropriate to use the mediation service.
Where Nkom elects to use the mediation service, this is conditional on the consent of both parties, as Nkom is unable to compel a party to take part in the mediation process.
Nkom may at any time elect to end mediation if there is no reason to continue, for example if the parties do not demonstrate a willingness to negotiate.
4. More details on the responsibilities of Nkom and of the parties
It is basically the responsibility of the parties to formulate their requirements and views, but Nkom can provide assistance if necessary. Nkom will do its best to help the parties understand one another’s viewpoints.
During the mediation process, Nkom may propose agreement terms, including terms of a contractual nature which are not directly regulated by electronic communications legislation. Nkom may prepare a draft solution if the parties do not reach an agreement themselves.
During the process, it is often the case that the parties need Nkom to interpret or clarify the scope of the provisions. This can be crucial for the parties’ positions, and is an important part of the mediation process. Clarifications will normally be made in writing at the request of one or both parties.
Where Nkom considers appropriate, the parties will be invited to separate meetings with Nkom before joint mediation meetings are held. If this does not happen, the parties may nevertheless request separate meetings at any time during the mediation process. The number of joint mediation meetings depends on the nature and scope of the case.
Mediation does not prevent the parties from holding meetings at which Nkom is not represented.
6. Meeting notes
The parties and Nkom shall agree on the extent to which meeting notes should be prepared on joint meetings. Meeting notes are sent to the parties for their comments. A final version is then prepared and sent to the parties. Meeting notes are not signed. If the parties so request, minutes may be kept, which are signed by the parties. By agreement, communication between the parties and Nkom during the mediation process can take place electronically.
7. Public access
The Norwegian Freedom of Information Act applies to documents sent to Nkom in connection with mediation. Nevertheless, Nkom is able to exclude from public access such information which, for example, is considered commercially sensitive under the Public Administration Act, Section 13, Paragraph 1, No. 2.
Party disclosure also applies in mediation cases. All documents which a party sends to Nkom will be sent immediately to the other party, unless the sender claims that the information is excluded from party disclosure. This must be clearly stated and the basis for such an exclusion must be justified.
Information provided orally in separate meetings with Nkom, see section 4 above, will not be disclosed unless the party consents to this.
8. Mediation period – conclusion of mediation and any decision
The mediation period begins when the request for mediation is received and Nkom finds that the conditions for mediation are in place. Nkom would like to stress that for the mediation period to begin, it is not enough simply to send a mediation request without providing an account of the facts of the case.
If the mediation process ends without agreement being reached, theNorwegian Communications Authority may make decisions, including specifying the agreement conditions that are necessary for agreement to be reached between the parties, cf. Section 11-2 of the Electronic Communications Act.