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Agreement Checklist

Agreement to Mediate – A Checklist Of What It Should Cover.

The Agreement to Mediate provides a contractual framework for mediation. This is important because it provides protection on issues such as confidentiality for all concerned. The mediator (or the mediation provide that the mediator works with) should provide you with a template of its standard Agreement to Mediate together with any variations required by the particular case.
The responsibility for ensuring that the terms of the Agreement to Mediate are appropriate for the parties rests upon the parties’ advisers. The following is a non-exhaustive list of pointers to the matters usually covered in such an agreement:

  • Parties
    • Full legal titles of the parties and addresses.
    • Name of mediator (or the organisation providing the mediator’s service).
  • Mediation date, time, duration and venue.
  • The dispute. This needs to be identified. Often an accident date and or the court reference (where proceedings have been commenced) will suffice.
  • Provisions relating to:
    • confidentiality and without prejudice nature of the mediation,
    • confidentiality and without prejudice status of mediation documents (save for documents that are produced for the purposes of the litigation, and
    • a confidentiality agreement to be signed by any person attending the mediation who is not a party to the dispute (such as the claimant’s spouse or friend).
  • The mediation rules or scheme under which the mediation is taking place. These may be set out in full in the Agreement or incorporated by cross reference.
  • There will usually be provisions to the effect that:
    • the parties attending will have authority to settle the claim
    • any agreement reached will not be legally binding until it is reduced to writing and signed
    • the mediator will not have any liabilities to the parties
    • the mediator has checked that there is no conflict of interest with any of the parties, and
    • a party shall not require the mediator to give evidence in any subsequent proceedings.
  • The mediation code of conduct to which the mediator subscribes (for example European Code of Conduct for Mediators adr_ec_code_conduct_en.pdf
  • The mediator’s remuneration, and
    • whether this covers or excludes matters such as VAT, preparation, travel costs, and mediation time beyond that specified in the Agreement and
    • who is responsible for paying the costs in the first instance.
  • The cost of providing the venue and refreshments is ordinarily provided by the parties.
  • Costs liabilities. See Mediation costs – tips and traps.
  • Conflict search: provisions regarding whether the mediators has any conflict of interest with either of the parties.
  • Type of mediation. (Usually the Agreement will envisage a facilitative role for the mediator. If the parties prefer the mediator to take an evaluative approach, or require an unusual approach such as “med-arb” (mediation then arbitration, possibly with the same neutral) this needs to be clearly stated in the Agreement.)
  • Governing law/jurisdiction.

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