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.
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