CIArb publishes Model Mediation Agreement
CIArb News / 03 February 2010
Having a comprehensive and robust Mediation Agreement from the outset helps reduce the risk of the mediation process being derailed.
Working in the public interest to maintain mediation practice standards and supporting individual practitioners, CIArb has published a Model Mediation Agreement for use by any mediator using CIArb's Mediation Rules.
The agreement was drafted by CIArb's Mediation Sub-Committee and pulls together the knowledge and experience of some of the world's leading practitioners.
The Model Mediation Agreement covers the basic elements of a mediation. In this way it is more flexible and adaptable to the needs of both the different jurisdictions and the specific features of the actual case.
The final version is the product of extensive drafting and debate by the committee, which provides a useful insight to mediation practice.
Recommending other processes
A point that attracted much debate was the first part of Clause 1.3, which states:
"If the Parties are unable to reach a settlement during the Mediation, and only if all the Parties so request and the Mediator agrees, the Mediator may produce for the Parties a non-binding recommendation on possible processes or terms of settlement."
Some members of the Sub-Committee feared that by recommending other possible processes such as arbitration and early neutral evaluation, mediators would be overstepping their remit, giving, with inadequate instructions, advice more in the role of the parties' lawyers.
The majority concluded that proposing, upon express request by the parties, a range of procedural possibilities would not run counter to the role of the mediator and would reflect the pragmatic approach to helping parties resolve their disputes.
Confidentiality and privilege
There was much discussion as to whether or not every individual attending the mediation should be expressly bound into the confidentiality and privilege requirements of the mediation agreement. That is something that has not been routinely done in England up to now but has been adopted in other parts of the world.
It was agreed that it was no longer acceptable for the parties to sign the mediation agreement and, thereby, purport to bind all the attendees, including their lawyers, experts and the like, to confidentiality because that might not be effective in law. By virtue of their retainer, lawyers owe a duty of confidentiality to their own clients but unless they specifically agree to do so, not to the other parties to the dispute.
So the Model Agreement contains, in Schedule 4, under the title "Attendance and Confidentiality Agreement", a requirement that all the persons attending the mediation, including the parties' representatives, their lawyers, experts, and any additional advisors to the parties, sign that schedule on their own behalf under the following words:
"In consideration of my being permitted to attend the Mediation taking place under the provisions of the Agreement to which this Schedule 4 is part, I agree to be personally bound by the without prejudice nature and the confidentiality provisions of the Mediation Rules (as defined in Clause 2.1 of the Agreement, including but not limited to Rules 1 and 12 of the Mediation Rules. I also agree to be personally bound by Clause 5.1 of this Agreement (Exclusion of Liability and Indemnity)"
Start date
Clause 4 of the Model Mediation Agreement deals with the start date and termination of the mediation.
It provides that: "The Mediation shall begin on the Effective Date (as defined in Schedule 1)"_ and Schedule 1 provides that: "Effective Date" means [insert date of start of preparation for the Mediation] or if no such date is here stated, the date of this Agreement"
These provisions take into consideration the usual practice of signing the mediation agreement on the (first) day of the mediation, while often documents and communications have been exchanged before that date, but specifically in view of the mediation. These provisions allow the parties and the mediator to refer the effect of the mediation agreement, notably the confidentiality provisions, back to the true beginning of the mediation process.
Useful tool for mediators
It is hoped that CIArb's Model Mediation Agreement, in conjunction with the CIArb Mediation Rules, will become an invaluable tool for the practising mediator.
You can download the Model Mediation Agreement from the model contract clauses and agreements section of the website
The Mediation Rules can be downloaded from the Practice Guidelines and Protocols section.