Checklist 13 - Agreement to Mediate
In some places and for some disputes there are laws that govern your mediation. They may even protect the confidentiality of the negotiations at the mediation. When this is not the case, you need an Agreement to Mediate. This Checklist helps you to select the terms of the Agreement to Mediate.
1. Identification of the disputants
2. Appointment of the mediator
- The disputants appoint XY as the mediator(s).
- The mediator accepts the appointment.
3. Decision to mediate the dispute
- The disputants agree to mediate a specified dispute.
- The disputants are encouraged to consult their lawyers.
- The mediation process is described, together with a statement of whether separate meetings, or caucuses, will be utilized.
- The date and location of the mediation meeting as well as the date and location of the preliminary conference may be recorded.
- A statement that the mediator has discussed the suitability of the mediation process in relation to other dispute resolution processes available to the disputants.
5. Preliminary Conference
- The purposes for which a preliminary conference may be held.
- A statement about whether the mediator has the authority to require a preliminary conference.
- A statement describing who attends the preliminary conference.
- A description of the preliminary conference process, such as whether there will be one or a series of pre-mediation meetings.
6. Principles of Negotiation
- An agreement to disclose and exchange, or not to disclose and exchange, all relevant documents, reports and information in advance of, or at, the joint mediation meeting.
- An agreement that the disputants will comply with reasonable requests from the mediator.
- A commitment by the disputants to negotiate in good faith, to make a serious attempt to settle the dispute, or to behave in a bona fide manner.
- Provisions requiring the preparation and delivery of a mediation summary or a statement of facts and issues by the participants in advance of the mediation.
7. Mediator's Connection to the Dispute
- A statement that the mediator has no vested interest in the outcome.
- A statement that the mediator is impartial.
- A statement that the mediator is neutral.
- A statement that the mediator does not have a conflict of interest or alternatively, a statement explaining previous relationships that the mediator may have had, or, if the mediator is a lawyer, that members of the mediator?s firm may have had with a disputant.
- In the event that the mediator or the mediator's firm may have had a previous relationship with a disputant, an acknowledgement of that relationship by the disputants and a statement that they are willing to have the mediator conduct the mediation.
8. What the Mediator Will Do
- A statement that the mediator will assist the disputants to communicate and negotiate as effectively as possible with the goal of reaching a settlement of the matters in dispute.
- An agreement that the mediator will, or will not, prepare a memorandum of the agreement reached by the disputants.
9. If the Mediator is an Attorney, What the Lawyer-Mediator May Do
- A statements that the mediator is not acting as a lawyer, is not representing any disputant and will not provide legal advice.
- An explanation of the circumstances in which the mediator will prepare legal documents or prepare and process court documents.
- A statement that neither the mediator nor a member of the mediator's law firm will act as legal counsel for, or against, any person where to do so would require the lawyer to disclose or make use of confidential information gained as a result of the mediation.
- An absolute or time-limited prohibition against the mediator and the mediator's law firm acting for any disputant against the other disputants in the mediation.
10. What the Mediator Will Not Do
- A statement that the mediator will not, or will in specified situations, make decisions for the disputants.
- A statement that the mediator will not tell the disputants what to do.
- A statement that the mediator will not disclose mediation communications to non-participants.
- If there are fees for the mediation, a statement of the fee and how the fee, disbursements and taxes will be shared among the disputants, together with the agreed terms of payment.
- If there are fees for the mediation, a statement giving the amount of fees for the cancellation or the adjournment of mediation meetings and who is responsible for Where the mediator is providing "for fee" mediation services through a mediation service but is not employed by that service, a statement that the mediator is an independent contractor or consultant and not an employee of the mediation service.
12. Disputes over Fees
- The process that will be used if there is a dispute over the mediation invoice.
13. Experts, Interpreters and Others? Roles and Remuneration
- Whether the mediator may retain the services of experts, or others, and for what purpose, as well as an agreement about payment for these services.
- Whether there is a need for an interpreter and an agreement about the payment of the interpreter's fees.
14. Confidential, Without Prejudice and Non-Compellable
- A statement that mediation communications are confidential. Communications that are part of the mediation and documents that are prepared for the mediation may not be revealed to persons who were not present at the mediation.
- A statement defining mediation to include the preliminary conferences so that these communications are confidential.
- A statement that the mediator may, or may not, treat private communications with one party as confidential from the other disputant.
- A statement that discussions in mediation are without prejudice. No admissions or settlement proposal made as part of the mediation may be disclosed.
- A statement that the mediator and the mediator's notes are non-compellable by a court or tribunal.
15. Limitations to Confidentiality
- Rules of disclosure in the litigation process, statutory provisions, an order of the court, or the unanimous consent of the disputants may require or permit the disclosure of documents prepared for the mediation or communications arising in the mediation.
- Disputant communications with legal counsel are not prohibited.
- The mediator may reveal mediation communications to each disputant's lawyer.
- Consent to the use of non-identifying details about the mediation for research, educational or evaluation purposes.
- Where the mediation is over a complaint to a public body, an agreement about the manner in which the public body may publish the results of the mediation.
- Where the mediation is over a complaint to a public body, a statement describing the use that the public body may, or may not, make of any agreement and whether information about the mediation may be referred to in subsequent complaints about the wrongdoer to the public body.
- An agreement about how press releases will be dealt with during the mediation.
- An agreement that a, or that no, transcript or other record of the mediation, will be made.
16. Limitations to Mediator Liability and Indemnification
- A statement that the mediator does not promise results; that the disputants may agree to a compromise that is less than what might have been achieved in court or through some other dispute resolution process.
- A complete or limited release of the mediator from liability.
- Indemnification of the mediator for claims and legal costs arising out of the mediation.
17. The Voluntary Nature of the Mediation
- A statement that the agreements reached at the mediation are voluntary.
- Subject to laws or contracts requiring mandatory participation in mediation, a statement that continued participation in the mediation is voluntary.
18. Whether the Agreement reached at Mediation is Binding
- A statement describing the legally binding nature of any agreement reached at the mediation.
- When a disputant participates through a representative, a statement that the agreement reached by the participants is binding, or is not binding, until it is ratified by the disputant.
- A statement indicating whether any agreement must be written and signed by all disputants before it is binding.
19. Authority and Obligations of Representatives
- When a disputant participates in the mediation through a representative, a declaration that the representative has, or does not have, the authority to negotiate a final settlement.
- When a disputant participates in the mediation through a representative who does not have the authority to negotiate a final settlement of the dispute, a commitment that the representative will use her best efforts to obtain ratification of the agreement.
20. Impact of Mediation on Legal Proceedings
- If the matter being mediated is the subject of litigation, an agreement about what may, or may not, occur within the litigation until the mediation concludes.
- If the matter being mediated is before a court or a tribunal, a statement that the disputants waive their right to move for a dismissal of the prosecution of the matter based upon a delay of the prosecution attributable to the mediation.
21. Conclusion of Mediation
- The right of the mediator to end the mediation and the procedure to do so.
- Subject to statutory provisions requiring bona fide participation in mediation, the right of any disputant to withdraw from the mediation and the procedure to do so.
22. After the Mediation
- A statement that the disputants will carry out the provisions of an agreement reached at mediation.
- The mediator's involvement should the mediation be followed by another dispute resolution process.
- If the implementation of the agreement will be monitored, a statement about who will do the monitoring and how it will be conducted.
- If the implementation of the agreement will be monitored, a statement describing the consequences of a failure to carry out the terms of the agreement.
23. Appended to the Agreement to Mediate
When someone who is NOT a disputant or attorney attends the mediation or when Rules of Procedure are called for
- An agreement to keep confidential communications and documents arising in the mediation by a person who attends some or all of the mediation but who is neither a disputant, legal counsel for a disputant, nor a mediator.
- Rules of Procedure.