Mediation Agreement - Template, Sample Form to Fill out Pro · AU-law

MEDIATION AGREEMENT

This Mediation Agreement (the "Agreement") is entered into and made effective as of ________ (the "Effective Date").

BETWEEN THE FOLLOWING PARTIES (who may be referred to individually as a "Party" and collectively as the "Parties"):

________

of the following address:

________

AND:

________

of the following address:

________

AND THE FOLLOWING MEDIATOR (the "Mediator"):

________

of the following address:

________

mediator accreditation number (where applicable): ________

(1) BACKGROUND

(1.1) A dispute has arisen between the Parties, the details of which are set out in the "Dispute" clause of this Agreement (the "Dispute").

(1.2) The Parties wish to resolve the Dispute between them and understand that litigation can be costly, time-consuming and uncertain.

(1.3) The Parties agree to appoint the Mediator to assist them in resolving the Dispute through mediation.

(1.4) The Parties agree to participate in the mediation, the details of which are set out in the "Mediation" clause of this Agreement (the "Mediation").

(1.5) The Mediator agrees to assist the Parties with the Mediation, on the terms set out in this Agreement.

(1.6) The Parties acknowledge that mediation is a voluntary, confidential and without prejudice process, and that nothing in this Agreement obliges any Party to settle the Dispute.

(1.7) This Agreement sets out various details about the Dispute and the Mediation, including:

(1.7.1) the nature of the Dispute;

(1.7.2) the role of the Mediator;

(1.7.3) the time and location of the Mediation;

(1.7.4) how the Mediation will take place and who may attend;

(1.7.5) how the costs of the Mediation (including the Mediator's fees) will be paid;

(1.7.6) communication between the Parties and the Mediator;

(1.7.7) confidentiality and privilege;

(1.7.8) termination of this Agreement;

(1.7.9) enforcement of this Agreement; and

(1.7.10) enforcement of any settlement reached at the Mediation.

(2) DISPUTE

(2.1) The following dispute has arisen between the Parties (the "Dispute"):

________

(2.2) The Parties wish to attempt to resolve the Dispute by mediation.

(3) GOVERNING LAW AND JURISDICTION

(3.1) This Agreement, the Mediation and any Settlement Agreement are governed by and will be construed in accordance with the laws in force in ________, Australia, and the Parties submit to the non-exclusive jurisdiction of the courts of that jurisdiction and the courts competent to hear appeals from them.

(3.2) The Mediation will be conducted having regard to any applicable legislation, rules or standards governing mediation, including the National Mediator Accreditation System (NMAS) where the Mediator is accredited, and any further applicable law as set out below:

________

(3.3) Nothing in this Agreement limits any obligation of confidentiality, admissibility or privilege arising under any applicable evidence legislation, including the relevant Evidence Act.

(4) MEDIATOR

(4.1) The Parties acknowledge and agree that the Mediator will not advise any Party, will not determine the Dispute, and will not make decisions for any Party.

(4.2) The Mediator will mediate the Dispute between the Parties and assist them to reach their own resolution.

(5) IMPARTIALITY OF MEDIATOR

(5.1) The Parties acknowledge and agree that the Mediator will act impartially.

(5.2) The Parties confirm that they have no prior relationship with the Mediator, save as disclosed in writing prior to the date of this Agreement.

(5.3) The Mediator confirms that they have no prior relationship with any Party, save as disclosed in writing prior to the date of this Agreement.

(5.4) The Mediator confirms that they have no interest in the Dispute (other than acting as mediator in accordance with this Agreement).

(5.5) If the Mediator becomes aware of any circumstances which may interfere with the Mediator's capacity to act impartially in relation to the Mediation or the Parties (a "Potential Conflict"):

(5.5.1) the Mediator will notify each Party of the Potential Conflict;

(5.5.2) the Mediator will discuss the matter with each Party and will invite the Parties to raise any concerns they may have about the Potential Conflict;

(5.5.3) if the Parties agree, the Mediator may continue to mediate the Dispute; and

(5.5.4) if any Party or the Mediator considers that, due to the Potential Conflict, the Mediator will be unable to continue acting impartially in the Mediation, the Mediator may provide written notice to the Parties withdrawing from the role of Mediator of the Dispute.

(5.6) The Mediator will not act as arbitrator in any subsequent arbitration of the Dispute.

(5.7) The Mediator will not provide advice to any Party, or act as an advocate or witness for any Party, in any subsequent arbitration or court proceedings relating to the Dispute.

(6) MEDIATION

(6.1) The Mediation includes any and all sessions attended by the Parties with the Mediator, as well as any other steps taken by the Parties to attempt to resolve the Dispute.

(6.2) The Mediation will initially be scheduled for: ________.

(6.3) The Mediation will take place at the following location: ________.

(6.4) The Parties may also agree to attend subsequent sessions or alternative Mediation sessions (including by audio-visual or other electronic means) at days, times and locations to be agreed between the Parties.

(6.5) The Parties themselves will determine the scope of the Mediation, with assistance from the Mediator.

(7) MEDIATION PROCESS

(7.1) The Mediator will direct the Parties regarding the manner in which the Mediation will be conducted.

(7.2) The Mediator will be responsible for the following in the course of the Mediation:

(7.2.1) ensuring that each Party understands that mediation is a voluntary process;

(7.2.2) remaining impartial and assisting the Parties in coming to their own resolution;

(7.2.3) discussing the Mediation with the Parties' individual legal representatives, if requested to do so;

(7.2.4) conducting private meetings with the individual Parties as needed; and

(7.2.5) requesting any documentation or memoranda as needed from the Parties.

(7.3) In directing the Parties regarding the Mediation process, the Mediator should consider the circumstances of each Party, and the views of each Party regarding how the Mediation should be conducted.

(7.4) Without limiting the directions that the Mediator may give, the Mediator may give directions in relation to the following matters:

(7.4.1) whether or not it is appropriate for the Parties to have anyone else attend the Mediation on their behalf, such as legal representatives, interpreters or support persons;

(7.4.2) whether or not to schedule preliminary conferences;

(7.4.3) whether or not the Parties should provide written statements about the Dispute;

(7.4.4) whether or not any experts should be engaged, and if so, how their opinions should be presented (such as in person, in individual reports or in joint reports); and

(7.4.5) how and when the Mediator should be provided with any statements, expert reports or other relevant documentation or information.

(8) PARTIES' ACKNOWLEDGEMENTS AND OBLIGATIONS

(8.1) The Parties each agree that they are entering into this Agreement voluntarily. In the Mediation, the Mediator will assist the Parties in reaching a collaborative resolution to the Dispute.

(8.2) Each Party understands that the Mediator is not able to determine the Dispute, but rather is engaged to help the Parties come to their own agreement. Each Party understands that the Mediator will not provide any legal advice, and each Party is encouraged to seek independent legal advice throughout the course of the Mediation and after.

(8.3) The Parties agree to participate in the Mediation in good faith.

(8.4) Each Party acknowledges that the Mediation presents a valuable opportunity to resolve the Dispute in a timely and cost-effective manner.

(8.5) Each Party will comply with any reasonable request made by the Mediator in relation to the Mediation.

(9) FEES

(9.1) The Mediator's fees are ________ (plus GST where applicable).

(9.2) The Parties will share the Mediator's fees equally and each will be responsible for remitting payment of its share individually.

(9.3) The Mediator will be responsible for issuing a tax invoice to the Parties prior to the Mediation.

(9.4) The Parties will each pay their own costs of and incidental to the Mediation, including the costs of their own legal representatives and advisors.

(9.5) In the event that any Party fails to pay its share of the Mediator's fees, the Mediation may not proceed, or may be terminated, at the discretion of the Mediator.

(10) ATTENDANCE AT THE MEDIATION

(10.1) Each Party must attend the Mediation, and must ensure that any person attending on its behalf has the authority to settle the Dispute.

(10.2) The Parties may be accompanied at the Mediation by legal representatives, interpreters, support persons or other advisors, subject to any directions given by the Mediator and the agreement of the Parties.

(11) COMMUNICATION BETWEEN THE PARTIES AND THE MEDIATOR

(11.1) The Mediator may meet with any Party or Parties, together or individually, whenever the Mediator chooses.

(11.2) If the Mediator considers it inappropriate to meet with any Party or Parties individually, the Mediator may refrain from doing so.

(11.3) The Mediator may communicate with the Parties orally or in writing.

(12) LIMITATION OF LIABILITY

(12.1) To the maximum extent permitted by law, the Parties agree that the Mediator will not be liable to any Party for any act or omission by the Mediator in relation to the Mediator's participation in the Mediation under the terms of this Agreement, except to the extent that the act or omission is fraudulent or otherwise unlawful.

(12.2) The Parties acknowledge that nothing in this Agreement excludes, restricts or modifies any guarantee, right or remedy conferred by the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) or any other law that cannot lawfully be excluded.

(12.3) The Parties and their representatives, as well as the Mediator, must not use any statements or comments made during the Mediation as a basis for any action for defamation, or any related complaint. This Agreement may be pleaded as a defence to any such claim.

(13) INDEMNITY

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(14) CONFIDENTIALITY AND PRIVILEGE

(14.1) The Parties acknowledge and agree that disclosures may be made during the Mediation in a genuine attempt to resolve the Dispute, and that any Party making such disclosures should not be disadvantaged in later proceedings (such as arbitration or court proceedings) as a result.

(14.2) The Parties and the Mediator agree that the Mediation is confidential.

(14.3) The Parties and the Mediator will not disclose any confidential information obtained through the Mediation to any person who was not present at the Mediation, except:

(14.3.1) if required to do so by law;

(14.3.2) if the disclosure is to obtain professional advice, and the person receiving the confidential information is notified that the information is confidential and agrees to keep it confidential; or

(14.3.3) if the Party that disclosed the confidential information during the Mediation gives their permission.

(14.4) If a Party provides information to the Mediator in confidence (such as during a private meeting), the Mediator agrees to keep that information confidential and to refrain from sharing it with any other Party, unless the Party providing the information agrees that the Mediator may disclose it.

(14.5) Any person(s) other than the Parties in attendance at the Mediation (such as legal professionals or other advisors) must also agree that the Mediation will be confidential, and must be ready to sign a confidentiality undertaking if directed to do so by the Parties or the Mediator.

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(14.6.1) any concessions, admissions or statements made by any Party;

(14.6.2) any documents or statements made by the Mediator;

(14.6.3) any proposal to settle the Dispute; and

(14.6.4) the fact that any Party has demonstrated a willingness to consider a settlement proposal.

(14.7) The Privileged Information will not be admissible in any court proceedings or arbitration, to the extent permitted by law.

(14.8) The Parties and the Mediator will keep the Privileged Information confidential and will not disclose it or rely on it outside of the Mediation, and will not issue or cause to be issued any subpoena to give evidence or produce documents relating to the Privileged Information.

(14.9) Notwithstanding any other provision of this clause, this Agreement and any Settlement Agreement executed by the Parties will not be subject to the confidentiality and privilege obligations set out in this clause, and may be relied upon and admitted into evidence in any arbitration or court proceedings to the extent necessary to enforce its terms.

(14.10) Each Party and the Mediator will handle any personal information disclosed in the course of the Mediation in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles, where applicable.

(15) TERMINATION

(15.1) Although the goal is for the Parties to complete the Mediation and resolve the Dispute, the Mediation is entirely voluntary. The Mediation may be terminated if:

(15.1.1) the Parties execute a written settlement agreement in relation to the Dispute;

(15.1.2) any Party wishes to withdraw from the Mediation;

(15.1.3) the Mediator determines that a collaborative resolution will not be possible; or

(15.1.4) the Parties and the Mediator together wish to terminate the Mediation.

(15.2) Upon termination of the Mediation, the Mediator will destroy or return to the Party that initially provided them any documents or information, except for this Agreement, any Settlement Agreement, and the Mediator's notes from the Mediation.

(15.3) The obligations of confidentiality and privilege, limitation of liability and indemnity in this Agreement survive termination of the Mediation and this Agreement.

(16) SETTLEMENT AGREEMENT

(16.1) If the Parties reach an agreement regarding the settlement of the Dispute, they may execute a settlement agreement setting out the terms on which they will settle the Dispute (the "Settlement Agreement").

(16.2) The Parties acknowledge that any oral agreement reached at the Mediation is not binding unless and until reduced to writing and signed by or on behalf of each Party. Subject to its terms, the Settlement Agreement will be legally binding, and any Party may enforce the Settlement Agreement.

(17) GENERAL

(17.1) This Agreement constitutes the entire agreement between the Parties and the Mediator in relation to its subject matter and supersedes all prior negotiations and understandings.

(17.2) This Agreement may only be varied in writing signed by each Party and the Mediator.

(17.3) If any provision of this Agreement is or becomes invalid or unenforceable, that provision is to be read down or severed to the extent necessary, without affecting the validity or enforceability of the remaining provisions.

(17.4) This Agreement may be executed in counterparts (including electronic counterparts), each of which is an original and all of which together constitute one and the same instrument, and may be signed electronically.

(17.5) A notice under this Agreement must be in writing and delivered to the relevant party at the contact details set out below.

(18) CONTACT DETAILS

The contact details for the Parties and the Mediator are as follows:

________

Phone: ________
Email: ________

________

Phone: ________
Email: ________

________

Phone: ________
Email: ________

EXECUTED AS AN AGREEMENT ON ________

Signed by ________ (Mediator):

____________________________________
Signature of Mediator

Date: ________

In the presence of:

____________________________________
Witness Signature

____________________________________
Witness Name

____________________________________
Witness Occupation

____________________________________
____________________________________
Witness Address

Signed by ________ (Party 1):

____________________________________
Signature of Party 1

Date: ________

In the presence of:

____________________________________
Witness Signature

____________________________________
Witness Name

____________________________________
Witness Occupation

____________________________________
____________________________________
Witness Address

Signed by ________ (Party 2):

____________________________________
Signature of Party 2

Date: ________

In the presence of:

____________________________________
Witness Signature

____________________________________
Witness Name

____________________________________
Witness Occupation

____________________________________
____________________________________
Witness Address