Welcome   Services   Company Commercial   Construction Law   Credentials   ADR & The Court   Mediation   Arbitration / Adjudication   CPR Guide   Articles   Case Law   Contact Us 
Reasonable   Minds  
  can agree to differ  

call us +44 (0) 1604 882287

cjc@christopherjcox.co.uk

A Successful Outcome
We are lawyers and mediators who believe in collaboration and consensus to close deals and solve disputes.

dialogue
negotiation
resolution

Letter to Client Warning of Duty to MediateThe Mediator's Role
The Mediation Agreement
An example of the mediation process
Briefing the Mediator
The Opening Statement Checklist


  

The Mediation Agreement

This agreement is made on ______ day of __________ 2005 between Christopher James Cox (“the Mediator”) and the parties set out in clause 1 below.

  1. The Parties are:
    1.  
    2.  
    3.  
    4.  
    5.  
    6.  
  2. The Parties will attempt to settle the dispute that has arisen between them (“the Dispute) at the mediation (“the Mediation”).
  3. The Mediator may appoint an assistant mediator.  The Parties’ consent is required to the identity of the assistant mediator.

The Parties’ roles and duties

  1. Each of the parties will prepare and send to the Mediator and the assistant mediator and all other Parties:
    1. a concise summary setting out its position in relation to the Dispute (the “case summary”) and;
    2. any documents to which the case summary refers and any others to which it may wish to refer at the Mediation (the “Document”).
  2. The case summary and the Documents shall be sent to the Mediator and the assistant mediator and to the other Parties not less than 7 days before the Mediation or on such other date as the Mediator and the Parties may agree.
  3. Each Party may give to the Mediator further information or documents that are not to be disclosed to the other Parties and in the case of documents such documents shall clearly be marked that they are confidential to the Mediator and the assistant mediator.
  4. Each of the Parties will attend the Mediation with a person (the “Authorised Person”) who has authority to bind that Party to any agreement reached as a result of the Mediation.
  5. If the Authorised Person for a Party will or may need authority from any person or body not present at the Mediation to enter into any settlement agreement that Party shall so inform the other Parties and the Mediator prior to the date of the Mediation.
  6. Each Party will inform the other Parties and the Mediator prior to the Mediation of the names of the persons attending on behalf of that Party.

The Mediator’s role and duties

  1. The Mediator will:
    1. attend any meetings or discuss the Mediation on the telephone with any or all of the Parties preceding the Mediation if requested to do so or if the Mediator decides that this is appropriate;
    2. read before the mediation each case summary and all the documents sent to him/her;
    3. chair, and determine the procedure for, the Mediation;
    4. assist the parties to try to settle the dispute which has arisen between them;
    5. assist the parties in drawing up any written settlement agreement.
  2. The Mediator will not act for any of the Parties individually in connection with the dispute that is the subject matter of the Mediation without the written consent of all the Parties.

The Mediation

  1. The Mediation will take place at                                              
  2. No transcript or recording shall be made of the Mediation or any part of it.
  3. Any settlement reached in the Mediation shall not be legally binding unless it has been reduced to writing and signed by or on behalf of the Parties.
  4. Any of the Parties may withdraw from the Mediation at any time and shall immediately so inform the other Parties and the Mediator.  The Mediation shall terminate when any of the following occur:
    1. any of the Parties withdraws from the Mediation; or
    2. a written settlement agreement is signed; or
    3. the Mediator terminates the Mediation for any of the reasons set out in clause 16 below.
  5. The Mediator may terminate the Mediation if:
    1. The Mediator considers that continuing the Mediation is unlikely to result in a settlement;
    2. Any of the Parties is acting in breach of this agreement;
    3. Any of the Parties, is in the Mediator’s opinion, acting in an unconscionable or criminal manner;
    4. The Mediator considers that he/she may be committing an offence under the Proceeds of Crime Act 2002 by continuing with the Mediation;
    5. Any of the Parties alleges that the Mediator is acting in breach of this agreement.
  6. The Mediator shall not be required to give any reasons for terminating the Mediation.

Confidentiality

  1. Each of the Parties and any person attending the Mediation on behalf of any Party and the Mediator and the assistant mediator shall keep confidential and not use for any collateral or ulterior purpose any information (whether given orally, in writing or otherwise) arising out of or in connection with the Mediation including the terms of any settlement, save for the fact that the mediation is to take place or has take place.
  2. Each Party warrants that the persons attending on its behalf at the Mediation will be bound by and will observe the agreement set out in clause 18 above.  Each such person shall also sign the mediation agreement and agrees to be bound by clause 18 above.
  3. All information (whether provided orally or in the form of documents, tapes, computer discs etc) arising out of or in connection with the Mediation shall be without prejudice and privileged and not admissible as evidence or disclosable in any current or future litigation or other proceedings whatsoever.  This does not apply to any information that would apart from this clause be admissible or disclosable in such proceedings.
  4. If any information provided to the Mediator or the assistant mediator by any Party prior to or during the Mediation and that information is expressly or impliedly confidential, the Mediator and assistant mediator will not reveal such information to any other Party save with the consent of the Party that provided the information.
  5. Paragraphs 18 and 21 shall not apply to the Mediator if and to the extent that (as appropriate):
    1. All parties consent to disclosure;
    2. The Mediator is required to make any disclosure pursuant to the Proceeds of Crime Act 2002 or is unable to conduct or continue with the mediation without making a disclosure to NCIS before doing so;
    3. The Mediator reasonably considers that there is serious risk of significant harm to the life or safety of any person if the information in question is not disclosed;
    4. The Mediator is required to make any disclosure by law.
  6. None of the parties shall call the Mediator or assistant mediator as a witness, consultant, arbitrator or expert in any litigation or other proceedings whatsoever arising from or in connection with the matters in issue at the Mediation.  The Mediator and assistant mediator shall not so act voluntarily without the written consent of all the Parties.

Stay of proceedings

  1. Any litigation or arbitration in relation to the dispute may be commenced or continued notwithstanding the Mediation unless the Parties agree otherwise or a court so orders.

Costs and fees

  1. The Parties will each bear their own costs of the mediation subject to any agreement that may be reached at the Mediation.
  2. The Parties shall bear and the Mediator shall not be responsible for the costs of the venue (if any).  The Parties shall also reimburse any expenses (including travel and accommodation) incurred by the Mediator in connection with the Mediation.
  3. The Mediator’s fees shall be £       (exclusive of VAT) which includes up to 5 hours preparation time and up to 6.00 pm on the day of the Mediation.  If the Mediator spends any additional time, such time will be charged at £    per hour (exclusive of VAT).  The Mediator will not spend more than 5 hours preparing for the Mediation without the consent of the Parties.
  4. Unless otherwise agreed by the Mediator and the Parties, the fees and expenses of the Mediator shall be borne as between the Parties by the Parties in equal shares.  For the avoidance of doubt the number of Parties shall be the number set out in clause 1 and the fact that more than one person is included in a Party shall not increase the number of Parties or the share of the fees payable by one Party.
  5. The fee of £     shall be paid 3 days prior to the Mediation.  Any further fees chargeable shall be paid within 14 days of the invoice being rendered.  Any fees paid late shall be subject to interest at 3% above the base rate from time to time of Barclays Bank plc.

Exclusion of liability

  1. Neither the Mediator not the assistant mediator shall be liable to the Parties for any act or omission during or in connection with the Mediation giving rise to any liability howsoever arising unless the act or omission is shown to have been dishonest or in bad faith.

Law and jurisdiction

  1. This agreement shall be governed by English law and the courts of England and Wales shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of, or in connection with, this agreement.

Signed
………................................

The Mediator
……………………………

The Assistant Mediator
…………………………….

Party A
……………………………..

Party B
………………………………
© Christopher J. Cox 2005. All rights reserved. Disclaimer