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Mediation agreements

  • 1.  Mediation agreements

    Early Adopter
    Posted 10-02-2021 10:41 AM
    I usually only have parties sign my commercial mediation agreements. I was wondering if anyone has the lawyers sign also, as I have heard some do. There may be a difference between VIC and NSW - or other states - regarding confidentiality undertakings.

    Curious as to what others do.

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    Donna Ross
    International ADR Practitioner
    Donna Ross Dispute Resolution
    Melbourne VIC
    0412 060 854
    ------------------------------


  • 2.  RE: Mediation agreements

    I'mLinkedIn
    Posted 11-02-2021 07:18 AM
    I normally only require the parties themselves to sign the agreements though I do make it clear at the commencement of the mediation that everyone in the room is bound by the confidentiality provisions.  I take the view that the lawyers are sufficiently sophisticated to understand the confidential nature of the process and their statutory ethical constraints provide an additional level of protection.  For the parties' benefit I do sometimes explain the rationale for the settlement privilege which attaches to mediation communications (which of course is additional to and separate from confidentiality).

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    Dr John Woodward
    Conjoint Lecturer
    University of Newcastle NSW
    0403 054 411
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  • 3.  RE: Mediation agreements

    Early Adopter
    Posted 11-02-2021 01:08 PM
    Agree. Thanks, John.

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    Donna Ross
    International ADR Practitioner
    Donna Ross Dispute Resolution
    Melbourne VIC
    0412 060 854
    ------------------------------



  • 4.  RE: Mediation agreements

    I'mLinkedIn
    Posted 11-02-2021 10:31 AM
    I use a modified (to take account of online participation) version of the RI Mediation Agreement, which only requires the parties to sign. I don't require lawyers to sign the mediation agreement, as I can't see why they would need to do so, since they are not a party. Furthermore, they are not liable for my fees and they are already under professional obligations to participate in good faith, maintain confidentiality, etc. 

    The modified RI Mediation Agreement that I use does, however, contain a schedule that is a confidentiality undertaking for signing by any attendee at the mediation who is neither a party nor a director, employee or legal representative of a party.

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    Prof. Andrew Christie
    Arbitrator and Mediator
    Melbourne, Australia
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  • 5.  RE: Mediation agreements

    Early Adopter
    Posted 11-02-2021 01:07 PM
    Thanks, Andrew. I have my own, also modified to include virtual platforms, but had heard someone saying they had lawyers sign so was wondering if that was common. Ditto for the confidentiality undertaking. 


    ------------------------------
    Donna Ross
    International ADR Practitioner
    Donna Ross Dispute Resolution
    Melbourne VIC
    0412 060 854
    ------------------------------



  • 6.  RE: Mediation agreements

    I'mLinkedIn
    Posted 11-02-2021 01:21 PM
    Hi Donna,

    Thanks for the question. First of all I notice confusion in discussions about whether the "Mediation Agreement" is the one signed before or thje one signed after the mediation. I'm not sure which one you refer to with your question. The terminology and practice I use is as follows: 

    - My Agreement to Mediate (AtM) covers both parties' and my relevant commitments regarding the mediation itself. This one is only signed by the parties and me, not the lawyers. However, my AtM includes a Confidentiality Undertaking (CU). I have this CU signed before the mediation by each participant to the mediation, including lawyers and other support people present.

    - The Mediation Agreement (MA) covers the settlement details as agreed during the mediation. Both parties sign the MA at the end of the mediation. I leave it to the parties to decide whether support people present (lawyers or otherwise) sign the MA as well. Sometimes they choose to do so, sometimes not.

    I'm also interested in reading how other mediators approach this.


    ------------------------------
    Victor Konijn
    Chief Authenticity Officer
    Clarity Counts
    Sydney NSW
    Australia
    0404 067 640
    ------------------------------



  • 7.  RE: Mediation agreements

    Early Adopter
    Posted 11-02-2021 03:15 PM
    Thanks, Victor. I use different terminology. My mediation agreement is with the parties and it is their - and my - agreement to mediate. Any settlement would be callled a settlement agreement, terms of settlement, deed of settlement as applicable or deteremined by lawyers if attending. Generally that is signed by the parties only, or an authorised representative as the case may be.

    In Victoria, lawyers do not need to sign confidentiality agreements or undertakings, but I believe that may be diferent in NSW.

    ------------------------------
    Donna Ross
    International ADR Practitioner
    Donna Ross Dispute Resolution
    Melbourne VIC
    0412 060 854
    ------------------------------



  • 8.  RE: Mediation agreements

    Early Adopter
    Posted 12-02-2021 08:33 AM
      |   view attached
    I have terminology that I formulated ages ago that others may find useful

    Original Agreement - whatever got the parties to interact, that is often a contract that may contain a disputes clause referring to mediation
    Mediation Agreement -  between the parties and the mediator for the conduct of a mediation
    Participation Agreement - between all participants and the mediator at a mediation meeting/session
    Settlement  Agreement - whatever the parties agree as a resolution of the disputes

    An example of my high-level Participation Agreement is attached for information and royalty-free use.  I would appreciate any suggestions or if anyone has any simpler but still effective versions.

    ------------------------------
    Bryan Ahern
    Civil Engineer / Builder
    Ahern Construction Dispute Consultants Pty Ltd
    JERRABOMBERRA NSW
    418204016
    ------------------------------

    Attachment(s)



  • 9.  RE: Mediation agreements

    I'mLinkedIn
    Posted 12-02-2021 10:25 AM

    Like many of the earlier respondents I also use the Institute's standard mediation agreement with a few very minor changes. This template specifically states that all other persons including legally qualified persons shall sign the confidentially statement. I have removed the need for their signatures to be witnessed. (Why should their signatures require a witness when the parties' signatures do not?)

    My approach is to circulate this agreement before the mediation to address any issues or concerns and then have all the participants sign the agreement just prior to the mediation.

    As has previously pointed out I appreciate and acknowledge that lawyers already have professional obligations etc covering confidentially. I have only had one query from a lawyer regarding the need to sign this document. To me it demonstrates commitment to participate in this process in good faith.

    I also have a number of additions I can add to my agreement as appropriate which cover online mediations and an option for med-arb if the parties want to provide for this option if a resolution cannot be reached during mediation.

    Based on my work related to proactive dispute avoidance rather than reactive dispute resolution I am planning to add a clause covering "Without Prejudice" to my standard agreement.

    In general, "without prejudice" refers to the privilege attached to written or verbal statements made by a party to a dispute in a genuine attempt to settle (or in my case avoid) a dispute. A document, or a verbal statement, made without prejudice cannot be compelled to be produced in evidence or referred to in proceedings. The formal use of "without prejudice" allows the parties to freely work towards a compromise without the risk that their statements may be used against them later should the facilitated discussion/mediation fail.

    The use of "without prejudice" is covered by the Evidence Acts of the various states and the Commonwealth. Like the Confidentiality Clause a Without Prejudice Clause has a number of tests and exceptions which would not keep without prejudice evidence out of court.

    I appreciate any comments on the inclusion of a "Without Prejudice" clause in a mediation agreement.



    ------------------------------
    Christopher Pitts
    Partner of Bridge Mediation
    Bridge Mediation
    North Sydney NSW
    419294277
    ------------------------------



  • 10.  RE: Mediation agreements

    Posted 13-02-2021 04:45 AM
    Sir Laurence Street explained the need for lawyers to sign the confidentiality agreement appended to the mediation agreement: they already have an obligation of confidentiality to their clients but unless they sign, they don't have such an obligation to the other parties.

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    Alan Limbury
    Managing Director
    Strategic Resolution
    Woolloomooloo NSW
    0412 104 809
    ------------------------------



  • 11.  RE: Mediation agreements

    I'mLinkedIn
    Posted 14-02-2021 03:13 AM
    I'm not sure that in practice it's quite that stark.  I'd argue that lawyers participating in a mediation are their client's agents and bound by their principals' confidentiality obligations and/or that the circumstances of a mediation are sufficient to give rise to an obligation of confidence in any event.

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    Philip Argy
    Principal and CEO
    ArgyStar.com
    Sydney NSW
    pargy@argystar.com
    +612 9719 8521
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  • 12.  RE: Mediation agreements

    Early Adopter
    Posted 15-02-2021 08:59 AM
    I agree!

    ------------------------------
    Donna Ross
    International ADR Practitioner
    Donna Ross Dispute Resolution
    Melbourne VIC
    0412 060 854
    ------------------------------



  • 13.  RE: Mediation agreements

    Early Adopter
    Posted 16-02-2021 10:04 AM
    Hi Philip and Donna,
    It may not be 'quite that stark.' But a signature on a confidentiality agreement, on the day of mediation, does give confidence and trust in the process to the participants, who may not be wise to the nuances of lawyer etiquette and obligations.

    ------------------------------
    [Mike] [Hyde]
    *Director
    The Mediation Specialists Group Pty Limited
    Wahroonga NSW
    [0430064797]
    MichaelHydeMichael
    ------------------------------



  • 14.  RE: Mediation agreements

    I'mLinkedIn
    Posted 16-02-2021 10:50 AM
    Thanks Michael, that is also my experience: that a confirmed confidentiality signature of all participants on the day puts parties in a more open state of mind. It seems to make it easier for them to think freely and share thoughts that are only developing; to be more vulnerable and more creative. 

    In my practice the trust resulting from confidentiality signatures from everyone seems more relevant then clarity around any formal need (or not) to do so.

    ------------------------------
    VICTOR KONIJN
    Chief Authenticity Officer
    Clarity Counts
    Beacon Hill NSW
    Australia
    0404 067 640
    ------------------------------