Mediation Documentation


Our Mediators operate using the following NWMS Mediation Agreement.  This agreement is individually tailored to your own circumstances.

If you have any questions please don't hesitate to contact us.



AGREEMENT TO MEDIATE

Agreement made the ………….day of ………………… 2016 between [party 1] (“the First Party”) and [party 2] (“the Second Party”) and the Mediator who is named below and enters this Agreement on the basis set out in Appendix 1.

Date of Mediation:

Venue:

The offices of

Start Time:

Duration:

Mediator:

(the services of the mediator are provided on the basis set out in Appendix 1)

First Party

Second Party

Solicitor / Counsel representing party at Mediation

Firm / Chambers

Solicitor Contact, if different from above

Firm

Reference

E mail

Telephone

Address

(Name of court and the court case reference if applicable.)

Definitions:

1.This mediation has been arranged by North West Mediation Solutions (“NWMS”) which is not a party to this Agreement.

2.The Mediator is the person named on the first page of this Agreement and whose further details appear in Appendix 1.

Agreement

A dispute (the “Dispute”) has arisen between the First Party and the Second Party (“the Parties”). The Parties and the Mediator agree as follows:

A. Duties and Obligations

1.         The Parties hereby appoint the Mediator for the mediation on the terms set out below and agree

  • to mediate the Dispute on the date and at the time and venue set out above (“the Mediation”)
  • that the Mediator and the Mediation shall follow
    • the European Mediation Procedure (“the Procedure”)[1] of the International Institute for Conflict Prevention & Resolution (“CPR”) (and when applying or interpreting the Procedure references to the CPR shall be deemed to be references to NWMS) and
    • the European Code of Conduct for Mediators (“the Code”)[2] 
  • that where the Procedure and the Code conflict the provisions of the Code shall prevail and 
  • where the provisions of this Agreement conflict with either the Procedure or the Code this Agreement shall prevail.

2.(a)    The Mediation and the entire mediation process is confidential.

2.(b)    The Mediation and the entire mediation process, and all negotiations, statements and documents expressly prepared for the purposes of the Mediation shall be “without prejudice” unless and until a settlement is reached and reduced to writing (save that it is further agreed that any statement or document prepared for the litigation of the Dispute shall not acquire without prejudice status merely because it was used in the Mediation).

2.(c)     Neither the Parties or the Mediator may  (whether by themselves or an agent) disclose to any person

any information regarding the mediation process (including pre-process exchanges and agreements and, in cases where a settlement is not reached on the day of the Mediation, continuing discussions and communications between the Mediator and the Parties) or

any content (including written and oral information) of the Mediation

unless…

-it is so agreed in writing among all the Parties and the Mediator,

-it is required by law and  ordered by the Court,

-the Mediator reasonably considers that there is a serious risk of significant harm to the life or safety of any person if the information in question is not disclosed; or

-the Mediator reasonably considers that there is a serious risk of his being subject or NMWS being subject to criminal proceedings unless the information in question is disclosed.

2.(d) Whether, where settlement is reached, the settlement terms or outcome of the Mediation are to remain confidential thereafter is a matter for  the Parties to negotiate and agree upon.

2.(e)    If litigation is pending, the Parties may inform the court of the timing and overall status of the Mediation for purposes of litigation management.

2.(f)No party shall seek to require the Mediator or NWMS to give evidence in any subsequent litigation about the Mediation or the Dispute and any party asked by the court either to give evidence about the Mediation or to procure evidence from the Mediator about the Mediation shall bring to the attention of the court the appropriate provisions of this Agreement.

3. (a)  Where Appendix 1 states that the services of the Mediator are provided to the Parties by the Mediator’s firm all liability for any of the services provided by or obligations owed by the Mediator shall attach to the Mediator’s firm and not the Mediator. Further, if a situation should arise whereby a party considers that a liability is owed to the Parties or either of them by both the Mediator and the Mediator’s firm it is agreed that the party or Parties will proceed solely against the Mediator’s firm[3].

3.(b) Neither the Mediator, the Mediator’s firm or NWMS shall be liable for any act or omission in connection with the Mediation, other than as a result of its/his/her own wilful misconduct or gross negligence. Further, the Parties agree that any liability the Mediator’s firm (or, where the Mediator is mediating as an individual, the Mediator) may have in respect of the Mediation shall be capped at £1 million. For the avoidance of doubt this cap is in respect of the total overall liability for all claims arising directly or indirectly out of or connected with the Mediation and “claim” shall include damages, compensation, interest, costs or any other item of claim.[4]

3.(c)  The Mediator has no previous commitments that are likely to significantly delay the expeditious conduct of the Mediation and will ensure that no such commitments are made.

B. Disclosure of Prior Relationships

1. The Mediator has made a reasonable effort to learn and has/have disclosed to the

Parties in writing (in Appendix 3):

(a) all business or professional relationships which the Mediator has/has had with the Parties or their lawyers within the past five years, including all instances in which the  Mediator served as a lawyer for any party or adverse to any party;

(b) any financial interest the Mediator has in any party;

(c) any significant social, business or professional relationship the Mediator has/had with an officer or employee of a party or with an individual representing a party in the

Mediation; and

(d) any other circumstances that may create doubt regarding the Mediator’s impartiality in the Mediation.

2. Each party and its lawyer have made a reasonable effort to learn and has disclosed to every other party and the Mediator in writing any relationships of a nature described in paragraph B.1. not previously identified and disclosed by the Mediator.

3. The Parties and the Mediator are satisfied that any relationships disclosed pursuant to paragraphs B.1. and B.2. will not affect the Mediator’s independence or impartiality.

Notwithstanding such relationships or others which the Mediator and the Parties did not discover despite good faith efforts, the Parties wish the Mediator to serve in the

Mediation, waiving any claim based on said relationships, and the Mediator agrees to so serve.

4. The disclosure obligations in paragraphs B.1. and B.2. are continuing until the

Mediation is concluded. The ability of the Mediator to continue serving in this capacity shall be explored with each such disclosure.

C. Future Relationships

1. Neither the Mediator nor any Assistant Mediator (see H below) shall undertake any work for or against a party regarding the Dispute, and pending the Mediation, any other matter.

2. Neither the Mediator nor any Assistant Mediator (see H below) shall personally work on any matter for or against a party, regardless of specific subject matter, prior to six months following cessation of the Mediation without the consent of the Parties.

D. The Mediation

1. (a)  The Mediator will attempt to resolve the dispute by way of facilitative mediation, with a view to the Parties reaching a mutually agreed resolution of the Dispute.

1.(b)  The Mediator will not evaluate or determine the Dispute.

1.(c)    The Parties acknowledge that

  • the Mediator will not provide legal advice and
  • to the extent that the Mediator might appear to one or more party to hold an opinion, it must not be interpreted as advice, guidance, or an indication as to the outcome of the Dispute.

1.(d)  The Parties agree and acknowledge that they will rely on their own representatives or legal adviser(s) for legal advice.

2.(a) The Mediator may terminate the Mediation if

after consultation with the Parties, the Mediator feels unable to assist the Parties to achieve resolution of the Dispute

the Mediator receives, from a source outside the Mediation, confidential information relevant to the Dispute or any party

the Mediator receives confidential information relevant to a client during the Mediation or

the Mediator in his absolute discretion considers it appropriate for any other reason (which reason the Mediator may decline to give to the parties, in which event the Parties undertake not to pursue the Mediator in any way for an explanation).

2.(b)  A Mediation shall end if a settlement is reached by the Parties and reduced into writing and signed. No settlement shall be deemed to have been concluded, nor any Settlement Agreement deemed to have been reached unless and until:

  • it is reduced into writing; and
  • signed by both Parties and/or their legal representatives.

( See A2.(d) above regarding the confidentiality of any settlement which may be reached.)

2.(c)  In  cases where a settlement is not reached on the day of the Mediation, any continuing discussions and communications between the Mediator and the Parties shall be governed by the terms of this Agreement so that, in particular, the arrangements concerning confidential and without prejudice communications shall continue to apply. (No further fee will be payable without the Parties written consent.)

E.  Remuneration

1.(a)  The Parties shall pay to NWMS (acting as agent for the Mediator or the Mediator’s firm) remuneration for the services provided by the Mediator in connection with the Mediation in accordance with the Remuneration Schedule in Appendix 2 (“the Fees”). 

1.(b)  The Parties will share equally and will be liable together and separately to the Mediator for the Fees and payment shall be made according to the terms in Appendix 1. No part of the remuneration shall accrue to CPR.

1.(c)Each party will pay its own legal costs and disbursements (expenses) in respect of the Mediation.

1.(d)Notwithstanding the above

I.the Parties shall be at liberty to agree (and to incorporate into any written Settlement Agreement or Tomlin Order) such terms on costs as they think appropriate;

II.there will be a presumption that, unless it is otherwise agreed or otherwise ordered by the court, the Fees and all expenses, legal costs and disbursements in respect of the Mediation will, as between the Parties, be costs in the case (that is, paid by the party who loses the action to the party who wins the action, if an order for costs is made in that party's favour);

III.whatever agreement the Parties may reach on costs as between themselves, paragraphs E.1.(a) and 1.(b) above shall continue to govern the liability of the Parties to the Mediator regarding the Fees.

F. Proceeds of Crime Act 2002

1.(a)   The Parties’ legal advisers hereby agree and confirm to the Mediator (and any Assistant Mediator) that they have made any or all necessary disclosures relevant to the Proceeds of Crime Act 2002 and that if and insofar as it may be necessary they will indemnify the Mediator (and any Assistant Mediator) against the consequences of any non-disclosure.

G. Governing Law and Jurisdiction

This agreement is governed and shall be subject to the law and jurisdiction of England and Wales.

[H . Assistant Mediator

____________________________ will act as Assistant Mediator, without fee, provided that the Parties so agree. The services of the Assistant Mediator are provided on the same basis as the services of the Mediator and the provisions of this Agreement, modified as necessary, shall apply to the Assistant Mediator. The Assistant Mediator agrees to comply with the Procedure and the Code and it is agreed that save for any significant breach of same and save any wilful misconduct or gross negligence no liability shall attach to the Assistant Mediator. Save for the specific provisions in this paragraph such duties or responsibilities that are owed by the Mediator to the Parties shall also be owed by the Assistant Mediator.]

I. Amendments to Agreement

No changes can be made to this Agreement after signature unless they are made in writing and signed by all parties.

____________________________

[name], Solicitor for and on behalf of the First Party

__________________________

[name], Solicitor for and on behalf of the Second Party

____________________________

Mediator (who signs on the basis set out in Appendix 1)

____________________________

[Assistant Mediator]

Appendix 1

The Mediator

The Name of the Mediator is set out below.

The services of the Mediator in respect of this Agreement are provided to the Parties by the Mediator’s firm (the Firm).

(The term “firm” includes a partnership, a LLP (Limited Liability Partnership) and a limited company).

The Firm holds professional indemnity insurance in respect of the mediation services that it provides by and through the Mediator.

Details of the Firm are set out below

Accordingly, the Mediator enters this Agreement as a member of or agent for the Firm and the contracting party in this Agreement is the Firm and not the mediator in his/her personal capacity.

NWMS will collect the Fees referred to part E of the Agreement and Appendix 2 below above from the Parties/their Representatives as agent for the Firm.

Firm’s details:

Name of Mediator

Name of Firm

Registered office / address of Firm

Firm’s LLP no

VAT registration no

[Alternative Appendix 1 where the Mediator mediates as an individual:]

Name of Mediator

Address

VAT registration no, if applicable

NWMS will collect the Fees referred to part E of the Agreement and Appendix 2 below above from the Parties/their Representatives as agent for the Mediator.

Appendix 2

Remuneration Schedule

The table below sets out the charges which will be applied, however, the fee has been agreed in the sum of £fee.00 plus VAT, to be divided equally between the parties (i.e. £.fee plus VAT per party) and a rate of £280.00 per hour plus VAT will be applied should preparation time and mediation exceed ?TOTAL hours, this sum also to be divided equally between the parties (i.e. £140.00 per hour per party).

NOTE All quoted fees are per party to the dispute on the basis of two parties, a further 10% will be applied for each additional party.

All fees quoted are, and will be net of VAT.

Service

Charge per party

Length of mediation

Including preparation of:

Additional charge per hour per party above anticipated length

Chaired solutions

£375 per party

2 hours

0

£150

Telephone mediation

£165 per party

2hrs including preparation

0

£75

Low value mediation -dispute up to £15,000

£375 per party *(see notes below)

3 hours

2 hours

£100

Half day mediation – dispute £15,000  – £50,000

£625 per party*(see notes below)

4 hours

2 hours

£150

1 day mediation – dispute £15,000 – £50,000

£1250 per party*(see notes below)

8 hours

2 hours

£125

Half day mediation –  dispute £50,000  – £250,000

£875 per party*(see notes below)

4 hours

2 hours

£175

1 day mediation – dispute £50,000 – £250,000.

£1,750 per party *(see notes below)

8 hours

2 hours

£165

1 day mediation – dispute £250,000 to £2,000,000.

 £2,375 per party *(see notes below)

8 hours

4 hours

£190

£2,000,000+

By negotiation

Training

£750 half day, £1,500 per day

The above fees include the reading time shown, any pre mediation telephone discussions and correspondence, any follow up work should the parties not settle on the day of the mediation, and all administration.

The fee remains payable if the Parties settle before the expiration of the anticipated time allowed for the mediation.

Additional preparation and mediation time (after hours shown above):  as shown in table, per hour, per party.

Mediator’s travel expenses are capped at £150.

Mediator’s overnight expenses are capped at £125, and shall only be payable where the mediation proceeds beyond 7 pm and/or goes into a 2nd consecutive day.

Costs of venue/accommodation and refreshments etc are to be provided by the Parties.

Payment terms

the fees for a mediation shall be invoiced in advance and payable 3 working days prior to the mediation. (If the fees are not paid prior to the commencement of the mediation the mediation will only proceed if the lawyers for all parties give professional undertakings that the fees will be paid within 28 days after the date invoiced.)

The balance of any supplementary fees shall be payable within 28 days after the date invoiced, and by signing this Agreement the lawyers for all the parties undertake to ensure that such supplementary fees are paid within that period.

Cancellation terms: a fee of 50% of the agreed fee, not exceeding £500 shall be paid if the mediation is cancelled, unless cancellation takes place more than 7 days prior to the mediation in which case no fee is payable

Appendix 3

Mediator’s disclosure pursuant to para  B.1. of the Agreement

(a) All business or professional relationships which the Mediator has had with the Parties or their lawyers within the past five years, including all instances in which the Mediator  has served as a lawyer for any party or adverse to any party.

None

(b) Any financial interest the Mediator has in any party.

None

(c) Any significant social, business or professional relationship the Mediator has/had with an officer or employee of a party or with an individual representing a party in the

Mediation.

None

(d) Any other circumstances that may create doubt regarding the Mediator’s impartiality in the Mediation.

None

Appendix 4

Details of other persons attending the mediation and confidentiality arrangements

I, the undersigned, in consideration of my having been given permission by the Parties or their representatives to attend the mediation, hereby agree that I will be bound by the Agreement as though I were a Party (except for the obligation to pay fees)  and in particular:

a) I will keep the affairs of the Parties and the mediation confidential,

b) I will not refer to anything that I hear, see or learn at the mediation at any time or in any place and

c) I will not give evidence about any of these matters; further

d) I will not seek to require the Mediator to give evidence in any subsequent litigation about the mediation except in the case of an allegation of misconduct during the mediation.

Name

Address

Signed

…………………………….

…………………………….

…………………………….

Agreement to Mediate

[party 1]

and

[party 2]

[NWMS reference number]



[1] Further details of the Procedure may be found at the CPR website: www.CPRadr.org   

The specific URL or internet address for the Procedure is: http://www.cpradr.org/Portals/0/Resources/ADR%20Tools/Clauses%20&%20Rules/Mediation%20Procedure.pdf  (If you are viewing an electronic copy of this Agreement you can connect to the hyperlink - Control and left click.)

[2] The specific URL or internet address for the Code is: http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf

 If you are viewing an electronic copy of this Agreement you can connect to the hyperlink - Control and left click.)

[3] The Mediator may be prepared to proceed on different terms but only on the basis that different insurance arrangements are made, at the expense of the Parties.

[4] See footnote 3.

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