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LambBuilding Alternative Dispute Resolution (LADR) - Pre-mediation agreement

[Mediator]

Accredited Mediator (SPC), Barrister
The Agreement

The Parties named below hereby agree to submit their dispute in Case No. ................. in the ...................................Court to mediation upon the terms and conditions set out below.

The Mediator

The Parties hereby appoint [..................................................................................] to act as Mediator(s).

The Parties

Party A: ................................................... represented by _________________and ___________(Solicitor/Counsel)

Party B: ................................................... represented by_________________and ___________(Solicitor/Counsel)

Party C: ................................................... represented by _________________and ___________(Solicitor/Counsel)

Venue/Date/Time

The Mediation will take place at ............................................................................... on the ................................................................ and will begin at ........... am and will continue until ......................................... or until such time as the Mediator and the Parties agree.

Terms and Conditions

    The Mediator
     

  1. The Mediator shall throughout the mediation act as an independent impartial neutral facilitator and will not seek to adjudicate, arbitrate, furnish advice, or impose a decision or solution in respect of any of the issues, save by agreement with the parties.

    2.  
  2. The Mediator shall not be liable to any party for any act or omission in connection with the conduct of the mediation, save for any wilful misconduct.

    3.  
  3. The Mediator shall not be called as a witness or as an expert in any pending or subsequent litigation or arbitration relating to the dispute or subject matter of the mediation, save where the Mediator and all parties agree in writing.

    4.  
  4. The Mediator hereby confirms that all known financial and/or other interests, all social, business or professional relationships with any party and/or their representatives, or any facts or circumstances which may create doubt as to the impartiality of the Mediator, have been disclosed to the parties in writing. The Mediator shall immediately disclose any said interests, relationships or circumstances that become apparent hereafter.

    5.  
  5. The Mediator shall be entitled to conduct the mediation process at his discretion, including the structure of the process, the attendance of participants, the agreeing of a timetable for the exchange of any relevant information or documentation, and the scheduling and re-scheduling of meetings with the parties, both before and during the mediation, whether in private caucus or with the parties jointly.

    6. Representation
     

  6. The Parties may choose to be represented or to remain un-represented at the mediation, and the legal advisers to the parties shall be entitled to participate in the mediation, save that:-
     
    i) the manner and extent of their participation shall remain at the discretion of the Mediator insofar as such participation may be appropriate or beneficial or otherwise conducive to the success of the mediation process, and
     
    ii) the parties shall remain free at all times to consult with their legal advisers.

    7. Authority to Settle
     

  7. The parties and/or their representatives hereby confirm that they have full authority to settle the dispute. In the event of any limitations to such authority, the limitations shall be fully endorsed hereon, or annexed hereto in a separate document.

    8. Confidentiality
     

  8. The entire mediation process shall be confidential and conducted upon a without prejudice basis. All offers, promises, statements, whether oral or in writing, in the course of the mediation shall not be disclosed to third parties and shall remain privileged and confidential, save that:
     
    i) any disclosure may be made that is or may be necessary for the implementation of any agreement reached in the mediation;
     
    ii) any evidence that would otherwise be admissible or disclosable shall not be rendered inadmissible or not disclosable by reason only of its use in the mediation;
     
    iii) where any information is given or received which relates or gives rise to the disclosure of a criminal offence, or material risk of harm, injury or other risk to safety, or where there is an overriding public or legal duty of disclosure, the duty of confidentiality cease and/or shall not apply, whereupon the Mediator may terminate the mediation without further notice or explanation.
     
  9. At the conclusion of the mediation, at the request of any of the parties, any written materials or documentation furnished to the Mediator or to another party shall be returned without the Mediator or the parties retaining copies thereof.

    10.  
  10. There shall be no stenographic, audio or visual record made or kept of the mediation process without the written agreement of the Mediator and all parties.

    11. Termination
     

  11. The Mediation process may be terminated when the parties and the Mediator are in agreement, or the mediator is of the view that the mediation process has been or is likely to be unsuccessful, or by the Mediator under paragraph 8(iii) herein, or where a party withdraws from the mediation.

    12. Settlement
     

  12. If agreement is reached between the parties, or if any issues are resolved, the parties or their representatives will execute a Heads of Agreement document for signature by or on behalf of all the parties to the agreement. The agreement shall not be binding until it has been reduced to writing and signed by or on behalf of all the parties to the agreement.

    13. Fees and Costs
     

  13. All fees for the professional services of the Mediator, together with all reasonable travel and other expenses incurred, shall be payable by the parties equally, unless otherwise agreed in writing.

    14.  
  14. The Mediator’s fee for the said mediation shall be [.................................]. In the event that the mediation continues beyond [....................................], an additional fee of [.....................] will become payable by the parties upon the terms herein. The said fee includes all preparation work up to a maximum of [.............] hours. Thereafter a fee of [................] will become payable by the parties upon the terms herein. A minimum of [.........] rooms will be required, and if provided by Chambers, will cost [.....................] which includes the cost of refreshments for up to [........] people.

    15.  
  15. In the event of an Assistant Mediator being appointed by the parties, the Assistant Mediator’s fee for the said mediation shall be [....................] per day. In the event that the mediation continues beyond [...........................................], an additional fee of [.................] per hour will become payable by the parties upon the terms herein. Alternatively, the Mediator shall be entitled to appoint and work with a co-mediator at no further cost to the parties.

    16.  
  16. All fees and expenses shall become due upon termination or settlement, and shall be paid within [........................... days] of the issue of the invoice. Thereafter interest shall accrue upon any unpaid invoice at the rate of [.......%] per month.

    17. Interpretation
     

  17. The term ‘Mediator’ shall include the masculine and the feminine, and the plural as well as the singular, where the context permits.

    18.  
  18. The agreement shall be governed by English law and construed and applied in accordance with the Rules and jurisdiction of the English courts.


    19.   DATED the ____________________ day of __________________________________ 2004


      SIGNED:__________________________________ for and on behalf of Party A


      SIGNED:__________________________________ for and on behalf of Party B


      SIGNED:__________________________________ for and on behalf of Party C


      SIGNED:__________________________________ by the Mediator


      SIGNED:__________________________________ by the Assistant Mediator

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