Mediation is a method of resolving disputes between parties. Our agreement is for the appointment of a Mediator to resolve disputes arising out of a contract which has been entered into between two parties.
The role of the Mediator is not that of a judge or arbitrator. The Mediator does not impose a decision on the parties but he/she acts as a go-between, as a facilitator, to help them try to reach agreement in relation to the dispute. More information on mediation is to be found on our website in free document "Alternative Dispute Resolution".
This agreement is short and reasonably straightforward.
Here there will be a reference to the contract in respect of which disputes have arisen. The contract is identified by the date and description of the subject matter.
1. APPOINTMENT OF MEDIATOR
This confirms the Mediator's appointment and refers to the Appendix which will give the date and brief details of the contract and the names of the parties. If agreed, this Appendix could also be used to give brief details of the disputes which are to be mediated.
2. PROCEDURE FOR MEDIATION
Although procedures vary from case to case, it is common for each party to be required to submit a short summary of the issues in dispute to the Mediator and to the other party, and we have provided for this in clause 2.1. Sometimes the length of the submission is restricted - e.g. not more than 10 pages of A4 text.
The agreement makes it clear in clause 2.2 that the procedure will be decided by the Mediator.
The date and location of the mediation is fixed in clause 2.3.
As a mediation which is successful will result in a settlement agreement, this is dealt with in 2.4 so as to ensure that the parties’ representatives at the mediation have proper authority to sign any settlement agreement.
3. MEDIATOR'S FEES
Since mediation is a consensual process between the parties to the dispute, it is usual for each party to be responsible for half of the Mediator’s fees. We have, however, provided in clause 3.2 that if one party does not pay, the Mediator is entitled to look to the other party for payment and it would then be up to the party making the double payment to recover 50% from the defaulter. Daily rather than hourly rates are sensible for fees when the mediation is in process - not least because this is likely to give the parties better value for money, especially if the mediation takes a long time to settle.
It is an important element of mediation that strict confidentiality should be maintained by the parties.
Mediation is a private process and is usually conducted on a "without prejudice" basis - i.e. under English law things which are said in the mediation and documents which are produced solely for the Mediation cannot be used in any subsequent legal proceedings unless the parties agree otherwise. Clause 3.2 covers this.
5. IMMUNITY OF MEDIATOR
Since the Mediator is brought in to assist the parties but is not usually involved in any other way with either of the parties or the contract from which the dispute arises, it is appropriate that Mediator should be protected from any prospective liability.
6. GOVERNING LAW
This clause states which country’s law and which courts govern the agreement.