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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Christopher Pitts
Partner of Bridge Mediation
Bridge Mediation
North Sydney NSW
419294277
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Original Message:
Sent: 12-02-2021 08:33 AM
From: Bryan Ahern
Subject: Mediation agreements
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.
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Bryan Ahern
Civil Engineer / Builder
Ahern Construction Dispute Consultants Pty Ltd
JERRABOMBERRA NSW
418204016
Original Message:
Sent: 11-02-2021 03:14 PM
From: Donna Ross
Subject: Mediation agreements
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.
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Donna Ross
International ADR Practitioner
Donna Ross Dispute Resolution
Melbourne VIC
0412 060 854
Original Message:
Sent: 11-02-2021 01:20 PM
From: VICTOR KONIJN
Subject: Mediation agreements
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.
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Victor Konijn
Chief Authenticity Officer
Clarity Counts
Sydney NSW
Australia
0404 067 640
Original Message:
Sent: 10-02-2021 10:40 AM
From: Donna Ross
Subject: Mediation agreements
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
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