Sample Agreement to Mediate

 

STRICTLY CONFIDENTIAL

 

THIS AGREEMENT TO ENGAGE IN MEDIATION is made [DATE]

 

BETWEEN:

 

Party A  [name] of [address]

 

AND

 

Party B [name] of [address]

(together referred to as ‘the Parties’)

 

AND

 

The Mediator

NICOLA WALLACE of Art ADR Global,

(a term which includes any agreed ‘mediator observer’)

 

In relation to a mediation to be held on:

[DATE] from [TIME] at [VENUE] (‘the mediation’)

 

Those signing this Agreement AGREE AS FOLLOWS:

 

The Mediation

 

1.         The Parties agree to attempt in good faith to settle their dispute at the mediation

            and to conduct the mediation in accordance with this Agreement to Engage in Mediation and

            the Mediation Rules set out in Schedule 2 to this document.

 

Authority and status

 

2.         The person signing this agreement on behalf of each party warrants having

            authority to bind that party and all other persons present on that party’s behalf at

            the mediation to observe the terms of this Agreement to Engage in Mediation, and also to having

            authority to bind that party to the terms of any settlement.

 

3.         The mediator shall not be liable to the parties for any act or omission in relation

            to the mediation unless the act or omission is proved to have been fraudulent or

            to have involved wilful misconduct.

 

Confidentiality and without prejudice status

 

4.         Every person involved in the mediation, including the mediator, parties, and

            any person identified in Schedule 1 to this Agreement to Mediate:

 

            4.1       shall keep confidential all information arising out of or in connection with

                        the mediation, including the fact and terms of any settlement, but not

                        including the fact that the mediation is to take place or has taken place or

                        where disclosure is required by law, or to implement or to enforce terms of

                        settlement or to notify their insurers, insurance brokers and/or

                        accountants; and

            4.2       acknowledges that all such information passing between the parties, the

                        mediator, however communicated, is agreed to be without prejudice to

                        any party’s legal position and may not be produced as evidence or

                        disclosed to any judge, arbitrator or other decision-maker in any legal or

                        other formal process, except where otherwise disclosable in law.

 

5.         Where a party privately discloses to the mediator any information in confidence

            before, during or after the mediation, the mediator shall not disclose that

            information to any other party or person without the consent of the party

            disclosing it, unless required by law to make disclosure.

 

6.         The parties understand that the mediator does not give legal advice and agree

            that they shall not make any claim against the mediator in connection with this

            mediation. The parties shall not call the mediator or any mediator observer as a

            witness, nor require them to produce in evidence any records or notes relating to

            the mediation, in any litigation, arbitration or other formal process arising from or

            in connection with their dispute and the mediation; nor shall the mediator act or

            agree to act as a witness, expert, arbitrator or consultant in any such process. If

            any party does make such an application (as listed above), that party shall fully

            indemnify the mediator in respect of any and all costs incurred in resisting

            and/or responding to such an application, including reimbursement at the

            mediator’s standard hourly rate for the mediator’s time spent in resisting and/or

            responding to such application.

 

Settlement formalities

 

7.         No terms of settlement reached at the mediation shall be legally binding until set

            out in writing and signed by or on behalf of each of the parties.

 

Fees and costs of the Mediation

 

8.         The Parties shall be responsible for the fees and expenses of the mediator (‘the

            Mediation Fees’) in accordance with Art ADR Global’s Terms and Conditions

            of Business current at the date of this Agreement (including any provision for

            the cost of additional hours if the mediation process extends beyond the allocated hours).

 

9.         Each party shall bear their own legal and other costs and expenses of preparing for and attending the mediation (‘each                       party’s legal costs’). However, each party further agrees that any court or tribunal may treat both the mediation fees and                     each party’s legal costs as costs in the case in relation to any litigation or arbitration where that court or tribunal has power               to assess or make orders as to costs, whether or not the Mediation results in settlement of their dispute.

 

Legal status and effect of the Mediation

 

10.       This Agreement is governed by the law of England and Wales and the courts of

            England and Wales shall have exclusive jurisdiction to decide any matters arising

            out of or in connection with this Agreement and the Mediation.

 

 

 

Signed Party A             …………………………........

 

Print Name                  .........................................

 

Date                              ………………………….........

 

Signed Party B            ………………………….........

 

Print Name                  .........................................

 

Date                             …………………………...........

 

 

Signed Mediator       ………………………................

                                    Nicola Wallace

 

Date                           …………………………...........

 

 

Observer

(if applicable)               .........................................

 

Print Name                  ………………………

 

Date                             ……………………………

 

 

 

SCHEDULE 1

Mediation Attendance Schedule and Confidentiality Record

 

To be signed by the parties, their legal representatives (if applicable) and other

advisers, the mediator, any observer, and any agreed person attending the mediation at

the invitation of either party.

 

Any person attending the mediation at the invitation of either party agrees that although they are not a party to this Agreement to Engage in Mediation, they nevertheless shall be personally bound

by the confidentiality provisions set out in Clause 4 of this Agreement to Mediate and Rule 10 of the Mediation Rules; their respective signatures below confirm that they have both read and fully understood the confidential requirements.

 

NAME                                                             SIGNATURE                                       DATE

 

1.

 

2.

 

3.

 

4.

 

5.

 

 

 

 

 

 

 

 

 

 

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