Dated day of 2021
of (“Party A”)
of (“Party B”)
(together referred to as “the Parties”).
(Name of Mediator) (“the Mediator”)
The Dispute being referred to mediation under this Agreement is: The subject of proceedings in ……… Court, Case No ……………… / Description of Dispute (the “Dispute”)
The Parties have agreed to submit the Dispute to mediation with the Mediator on the terms set out in this Agreement (the “Mediation Agreement”)
NOW THE PARTIES AGREE THAT:
1. The Mediation shall include:
1.1 A preliminary review of the Dispute as may be ascertained from the Mediation Bundle referred to in paragraph 2.5 below;
1.2 Any necessary preliminary telephone discussion/s with each or any Party who may have questions or concerns about the mediation process or documents to be provided;
1.3 The reserved day or days comprising the Mediation including any agreed extra time (“the Mediation Day”) currently due to take place on the date and time and at the venue set out in the Confirmation of Mediation in the Schedule this Agreement;
1.4 In the event that the Mediation is not terminated on the Mediation Day, the Mediation shall also include any communications between the Parties or between any of the Parties and the Mediator at any time after the Mediation Day until subsequent termination of the Mediation.
2. Each Party shall:
2.1 Sign this Mediation Agreement and pay any fees due at least 5 working days prior to the Mediation Day;
2.2 Confirm to the Mediator and the other Party/ies at least 5 working days prior to the Mediation Day, the names of all parties attending the Mediation on behalf of the Party and shall also identify the status of each such attendee in relation to the Dispute for example, Company Director or legal representative;
2.3 Inform the Mediator and the other Party/ies immediately if there is a change to the list of attendees;
2.4 If a Party so chooses, deliver to the Mediator at least 5 working days prior to the Mediation Day, a confidential Position Statement of the Party setting out a summary of the Dispute issues. Such position statements shall remain entirely private and confidential and shall not be disclosed to the other Party/ies;
2.5 Seek to agree with the other Party/ies a bundle of relevant documents common to the Parties (“the Mediation Bundle”) and deliver a copy thereof to the Mediator not less than 10 working days prior to the Mediation Day if the Mediation Bundle shall be more than 25 pages and not less than 5 working prior to the Mediation Day if the Mediation Bundle shall be less than 25 pages. In each case, the number of pages shall include any confidential Position Statement of the Parties. Where agreement on the contents of the Mediation Bundle cannot be reached, each or either party should submit their suggested bundle of documents to the Mediator within the same time-frames.
3. The Mediator shall:
3.1 Prepare and deliver to each of the Parties prior to entering into this Mediation Agreement, a Confirmation of Mediation and shall thereafter attach a copy to this Agreement in the form of a Schedule;
3.2 If appropriate and possible, discuss with each or any of the parties in advance of the Mediation any issues or concerns they may have regarding the Mediation Bundle or the procedure on the Mediation Day;
3.3 Give notice to the Parties that he shall not be permitted to act for any Party in any capacity in connection with the dispute, either on the Mediation Day or thereafter;
3.4 Use best endeavours to facilitate a compromise and/or resolution of the Dispute;
3.5 If requested by the Parties, assist in the preparation of any settlement agreement to record the terms agreed between the Parties on the Mediation Day;
3.6 At all times respect and maintain the confidentiality of all information provided to him/her by any of the Parties during the mediation process and in particular on the Mediation Day, save for any disclosure that may be required by law.
4. The Parties acknowledge and agree that the Mediator shall remain neutral and impartial throughout the Mediation and that the Mediator shall act as an entirely independent contractor and not as an agent of or in any capacity for or on behalf of any Party and that the Mediator has no personal or financial interest or otherwise in the Dispute or any issues relating to it.
5. The Parties acknowledge and agree that they shall not, either together or singularly or in their own names or through their legal advisors, take any steps in any jurisdiction to compel or require the Mediator, or Impact Mediation as a company, to act as a witness in any legal proceedings connected with the Dispute or the Mediation or to compel or require the Mediator or Impact Mediation as a company, to disclose any information, notes or documents they may have prepared in connection with the Dispute or the Mediation (such information, notes or documents remaining at all times, privileged and confidential and the exclusive property of the Mediator and/or Impact Mediation). Neither Impact Mediation nor the Mediator shall voluntarily act as a witness in any such circumstances.
6. Neither Impact Mediation nor the Mediator shall be liable to any Party or their respective representatives for any suggested or alleged act or omission arising during or in connection with the Mediation of the Dispute unless such act or omission is shown to have been in bad faith or in breach of the terms of this Mediation Agreement.
7. If, contrary to the terms of paragraphs 5 and 6 above any Party shall attempt to compel or require Impact Mediation or the Mediator to give evidence as a witness in any proceedings in any jurisdiction relating to the Dispute or the Mediation or for any suggested or alleged act or omission, that Party shall be required to indemnify Impact Mediation and/or the Mediator for all costs and expenses, including time spent, arising out of such action.
Privilege & Confidentiality:
8. The Mediator and the Parties individually acknowledge the confidentiality of all information arising out of the Mediation (“the Confidential Information”) and individually agree and undertake that they shall keep confidential and maintain as privileged, all and any such Confidential Information, however it may have arisen or have been disclosed in relation to or in connection with the Mediation. In particular, this shall include:
8.1 All correspondence, information or documents in any format, other than any Court pleadings or other documents in the public domain, that may have been produced for or in connection with the Mediation;
8.2 Any offers, concessions, admissions or information made or given or documents disclosed that may have been made, given or disclosed in a without prejudice effort to reach a settlement agreement between the Parties;
8.3 All and any communications of whatever nature or description between the Mediator and the Parties arising during negotiations for settlement, whether during the Mediation Day or before or thereafter;
8.4 There shall be excluded from any such agreement and/or undertaking:
8.4.1 any information given or disclosed that could otherwise be considered Confidential Information but that can be shown to have been false and upon which another Party relied in reaching a settlement agreement; and/or
8.4.2 any information necessary to enforce or implement any settlement agreement signed during the Mediation Day or thereafter; and/or
8.4.3 any information that may be required to be given by law.
9. Any settlement agreement reached between the Parties either during the Mediation day or thereafter shall not be legally binding until such time as it may be put into writing and signed by or on behalf the Parties.
Termination of Mediation:
10. The Mediation shall be deemed to have terminated (the “Termination”) when any of the following events shall occur:
10.1 When or if any Party withdraws from the Mediation;
10.2 When the Parties and the Mediator agree that the Mediation should terminate at the end of the Mediation Day or such other time as the Parties and the Mediator may agree;
10.3 When a written settlement agreement is signed by the Parties;
10.4 When the Mediator notifies the Parties, either on the Mediation Day or subsequently, that he/she considers that continuing the Mediation is unlikely to result in settlement or that it is inappropriate or undesirable for the Mediation to continue. The Mediator’s decision on this point shall be final and binding.
11. The fees, costs and expenses of the Mediator (the “Mediator Fee”) are set out in the Confirmation of Mediation in the Schedule to this Agreement and will be payable by the Parties as shown. Any additional costs or expenses incurred by the Parties will fall into the following categories:
11.1 Costs and expenses incurred by a Party to travel to the Mediation or by way of subsistence during the Mediation Day or by way of accommodation charges to stay near the Mediation Venue and also any costs or expenses relating to additional attendees for the Party and including legal or other representatives, shall all be payable by such Party in addition to the appropriate share of the Mediation Fee as confirmed in the Schedule;
11.2 In the event that a settlement agreement is signed on the Mediation Day, there shall be no further costs or expenses to any of the Parties;
11.3 In the event that no settlement agreement is signed on the Mediation Day, all costs and expenses incurred by all Parties, including the Mediation Fee, should be considered costs in the case in any subsequent litigation or arbitration;
11.4 If any Party cancels the Mediation prior to the Mediation Day, cancellation charges may apply as set out in the Confirmation of Mediation in the Schedule hereto;
11.5 Clause 11.4 shall not affect the right of any Party to seek to recover any cancellation charges from another Party it may consider to be at fault for the cancellation.
12. The Mediation of the Dispute and the interpretation of the terms of this Agreement shall be governed by and construed in accordance with English law and the Parties acknowledge and agree that the Courts of England and Wales shall have exclusive jurisdiction to settle any claim arising out of or in connection with this Agreement or the Mediation.
Party A / For & On Behalf of Party A by:
Party B / For & On Behalf of Party B by:
Confirmation of Mediation