Mediation Agreement

The mediation agreement is downloadable as a PDF file: Jewish Arbitration Mediation Agreement 30 July 2015

 

MEDIATION AGREEMENT

Date:

Litigants:               

and

        (“the Litigants”)

Mediator:             DOV SILBERMAN of 2/185 Orrong Road, East St Kilda,                                         3183,   Victoria

         (“the Mediator”)

Recitals:

A. A dispute, as briefly set out in Schedule 1, has arisen between the Litigants (“the Dispute”).

B. The Litigants have requested the Mediator, and the Mediator has agreed, on the terms and conditions of this agreement, to assist the Litigants in their attempts to resolve the Dispute.

AGREEMENT:

The Mediation

1. “The Mediation” shall comprise all steps taken to attempt to resolve the Dispute by mediation whether prior or subsequent to the execution of this agreement.

Appointment and functions of the Mediator

2. The Litigants appoint the Mediator, and the Mediator accepts the appointment, to mediate the Dispute in accordance with the terms of this agreement.

3. The Mediator will assist the Litigants to identify the issues between them and to explore options for and, if possible to achieve, the expeditious resolution of the Dispute by agreement between them.

4. The Mediator will not advise, nor give a legal opinion for the benefit of, a Litigant, nor make decisions for nor impose a solution on the Litigants, but may offer suggestions. Anything which can be interpreted as an advice, legal opinion, decision or solution by the Mediator is to be construed as a suggestion only.

5. The Mediator will not, unless the Litigants agree in writing to the contrary, obtain from any independent person advice or an opinion as to any aspect of the Dispute. Any such advice or opinion shall be obtained only from such person or persons as may be agreed by the Litigants.

6. The Mediator confirms that the Mediator has no interest in the Dispute. The Mediator shall, to the best of his belief and knowledge, disclose in Schedule 2 any circumstances likely to give rise to a reasonable perception of bias or justifiable doubts as to the Mediator’s impartiality or independence, including dealings with or any relationship with any Litigant. Otherwise the Mediator to the best of his belief and knowledge has not had any prior dealings with any of the Litigants. If there are any such circumstances disclosed, the Litigants acknowledge and agree that by appointing the Mediator, they explicitly waive any rights to challenge on that information and they do not consider that the information provided is sufficient to give rise to any doubts as to the mediator’s impartiality and independence.

7. If in the course of the Mediation the Mediator becomes aware of any circumstances that might reasonably be considered to affect the Mediator’s capacity to act impartially, the Mediator will, to the extent that the Mediator may properly do so, immediately inform the Litigants of those circumstances. The Litigants will then confer and the Mediator will continue to participate in the Mediation if the Litigants so agree.

Co-operation, Costs and Mediator’s Fees

8. The Litigants agree to participate in the Mediation in good faith.

9. Each Litigant will comply with reasonable requests made by the Mediator to promote the efficient and expeditious resolution of the Dispute.

10. Each Litigant will meet its own costs of and in connection with the Mediation.

11. Irrespective of the outcome of the Mediation, the Litigants will pay the Mediator’s fees and disbursements as specified in Schedule 3, in the proportions and at times therein stated

Authority & Representation

12. Each Litigant must be represented at the Mediation conference by a person or persons having authority to settle the Dispute.

13. The Mediator and the Litigants and any person attending the Mediation to assist and advise a Litigant in the Mediation and any support staff shall sign an acknowledgement and undertaking as to confidentiality and recording as specified in Schedule 4.

Conduct of the Mediation

14. The Mediation, including all preliminary steps, shall be conducted in such manner as the Mediator considers appropriate having due regard to the view of each Litigant as to the manner in which the Mediation should be conducted, and the mediator may give directions as to:

(i) the holding of preliminary conferences;
(ii) the exchange of written outlines of the views of the Litigants on the issues raised by the Dispute;
(iii) the exchange of experts’ reports, the meeting of experts and the preparation of a joint experts’ report; and
(iv) service on the Mediator of any such reports and outlines.

15. Mediation is concerned with dispute resolution and not with the gathering of information for litigation. Therefore each Litigant and a Litigant’s Legal Practitioners and any other person present during the Mediation conference will:

(i)    not record or attempt to record or capture statements made, with the exception of file notes taken or prepared by the Mediator, a Litigant or a Litigant’s Legal Practitioners;

(ii)   not record or capture or attempt to record or capture the image of any document, with the exception of file notes taken or prepared by the Mediator, a Litigant or a Litigant’s Legal Practitioners.; and

(iii)  comply with the Surveillance Devices Act 1999 (Vic) regarding the no recording or monitoring of a private conversation without consent AND the Telecommunications (Interception) Act 1979 (Cth) regarding taping communications through the telecommunications system.

For the purposes of this clause, the Litigants agree that unless otherwise made by consent in writing, no consent is given to record or monitor any of the Mediation or private conferences associated with it, with the exception of file notes taken or prepared by the Mediator, a Litigant or a Litigant’s Legal Practitioners.

Communication between the Mediator and a Litigant

16. The Mediator may communicate with a Litigant or the Litigants orally or in writing.

17. The Mediator may as frequently as the Mediator deems appropriate meet with the Litigants together or separately, may meet with a Litigant without the presence of their Legal Practitioners, and may meet with a Litigant’s Legal Practitioners without the presence of the Litigant.

18. Information, whether oral or written, disclosed in confidence by a Litigant to the Mediator need not be disclosed by that Litigant, and may not be disclosed by the Mediator to any other Litigant unless the Litigant by whom that information was disclosed consents to such disclosure.

Confidentiality

19. The Litigants and the Mediator and any other person present at the Mediation will not unless required by law to do so, disclose to any person not present at the Mediation, nor use, any confidential information furnished during the Mediation unless such disclosure is to obtain professional advice or is to a person within that Litigant’s legitimate field of intimacy, and the person to whom the disclosure is made is advised that the confidential information is confidential. The Mediator may disclose any confidential information to any person that he deems appropriate if in the opinion of the Mediator a person is at risk to personal injury or health.   For the avoidance of doubt, nothing in this clause prohibits a Litigant in its absolute discretion from relying on material that that Litigant discloses in the mediation at a subsequent hearing, should the mediation be unsuccessful.

20. The Mediator agrees:

(i) to keep confidential all information furnished by a Litigant to the Mediator on a confidential basis;
(ii) save with the consent of the Litigant or their Legal Practitioners who furnished such information not to disclose the information to any other Litigant or their Legal Practitioners.

Privilege

21. Subject to Clause 31, in any arbitral or judicial proceedings the following will at all times be kept confidential and will be privileged, and the Litigants and the Mediator will not disclose nor rely upon them nor issue nor cause to be issued any subpoena to give evidence or to produce documents concerning them:

(i) any settlement proposal;
(ii) the willingness of a Litigant to consider any such proposal;
(iii) any statement, admission or concession made by a Litigant;
(iv) any statement or document made by the Mediator.

22. A Litigant will not subpoena the Mediator to give evidence or to produce documents in any forum in respect of the Dispute.    If, contrary to this agreement, a Litigant (including any person whose interests the Mediator considers to be substantially the same as the Litigant’s) issues such a subpoena to the Mediator, the Litigant (or any such person) will:

(i) pay on demand the Mediator’s costs and expenses on a full indemnity basis (including legal costs incurred by the Mediator) of challenging and/or complying with the subpoena;
(ii)  pay on demand the Mediator the hourly rate specified in Item I of Schedule 2 for each hour spent by the Mediator in respect of the subpoena; and
(iii)  fully indemnify the Mediator in respect of any costs orders made against the Mediator in respect of the subpoena.

Cancellation and Termination

23. In the event that the Mediation is cancelled prior to the date for the Mediation, then the Litigant or Litigants who cancel the mediation shall pay a cancelation fee as set out in Schedule 3.

24. Prior to the commencement of the day of a Mediation, a Litigant or the Litigants may at any time unilaterally terminate the Mediation by giving written notice terminating the Mediation to each other Litigant and to the Mediator.   Notwithstanding any such termination, the Litigants will still be obliged to pay the Mediator’s fees as set out in Schedule 3.

25. If termination occurs on the day of a Mediation, the Litigants will still be obliged to pay for the full day’s (or half day’s if previously agreed to) fees.

26. If at any time the Mediator considers that: –

(i) the Mediator will be unable to assist the Litigants to achieve resolution of any of the Dispute; or
(ii) if the Mediator considers that the mediation is no longer productive; or
(iii) a Litigant is abusing the Mediation process; or
(iv) that the power imbalance between the Litigants is so great that the Mediation is unlikely to result in a mutually acceptable resolution; or
(v) that an agreement being negotiated by the Litigants is unconscionable,

then the Mediator may terminate his appointment as Mediator by giving written notice to the Litigants of that termination. Notwithstanding any such termination, the Litigants will still be obliged to pay the Mediator’s fees as set out in Schedule 3.

27. If such termination occurs on the day of a Mediation, the Litigants will still be obliged to pay for the full day’s (or half day’s if previously agreed to) fees.

28. If the Mediator terminates the Mediation for any reason, then he will not be liable for any claim for loss or damage by any or all of the Litigants, and the Exclusion of Liability and Indemnity clauses hereunder will apply.

29. In the absence of notice by a Litigant or Mediator terminating the Mediation, the Mediation will be terminated only upon execution of a written settlement agreement in respect of the Dispute. Such a settlement agreement shall be drawn up and executed at the earliest possible time after the terms of settlement have been agreed on and a copy shall be given to the Mediator. Failure to execute a written settlement within a reasonable time of an oral or handshake agreement to settle will be sufficient grounds for any Litigant to terminate the mediation upon giving two (2) business days notice to the other Litigant and the Mediator.

30. The Mediator is not required to retain any documents, including his notes, relating to the Dispute and may discard all documents at the conclusion of the Mediation. The Mediator shall have no responsibility or liability with regard to lost or damaged documents produced or tendered prior or during the Mediation.

Enforcement

31. Any Litigant will be at liberty:

(i) to enforce the terms of a settlement agreement; and
(ii) in any enforcement proceedings to adduce evidence of and incidental to the settlement agreement including evidence from the Mediator and any other person engaged in the Mediation.

32. The Mediator will not act as an advocate in, nor provide advice to a Litigant to, any arbitral or judicial proceeding relating to the Dispute. With the consent of the Litigants in writing, he shall be entitled to be appointed as an arbitrator pursuant to Section 27D of the Commercial Arbitration Act 2011

33. The Litigants will not do anything to cause the Mediator to breach Clause 32.

Exclusion of Liability and Indemnity

34. The Mediator will not be liable to a Litigant for any act or omission by the Mediator in the performance or purported performance of the Mediator’s obligations under this agreement unless the act or omission is fraudulent.

35. Without limiting Clause 34, the Mediator will have the protection and immunity in respect of the Mediation that he would have if he were a judicial officer performing duties in connection with a judicial resolution conference under Section 68 of the Civil Procedure Act 2010 and/or under Section 27A(1) of the Supreme Court Act 1986 as if he had been appointed by an order of the Supreme Court.

36. Each Litigant indemnifies the Mediator against all claims by that Litigant or anyone claiming under or through that Litigant, arising out of or in any way referable to any act or omission by the Mediator in the performance or purported performance of the Mediator’s obligations under this agreement, unless the act or omission is fraudulent.

37. No statements or comments, whether written or oral, made or used by the Litigants or their Legal Practitioners or the Mediator within the mediation shall be relied upon to found or maintain any action for defamation, libel, slander or any related complaint, and this document may be pleaded as a bar to any such action.

Notices

38. Any notice to be given or demand to be made relevant to this Agreement shall be deemed to have been duly and sufficiently given or made if it transmitted by email to the email address last notified to the other Litigants to this agreement.

39. Any notice or demand transmitted by email shall be deemed to have been received at the time noted by the sender’s copy email unless a failure notice was received by that Litigant.

Legislative Provisions and Severance

40. If a Court determines that a word, phrase, sentence, sub-clause or clause is unenforceable, illegal or void, then it must be read down so as to give it as much effect as possible. If it is not so possible to give it any effect at all, then it must be severed and the other provisions of this Agreement shall remain operative.

Schedule 1

Description of the Dispute including the title and number of any related legal proceedings:

 


Schedule 2

Disclosure by the Mediator (Clause 6)

 


Schedule 3

Mediator’s Fees and Expenses

 

1 For all preparation including a preliminary conference $        per hour
2 For the mediation (unless agreed prior, the Mediation will be set down for at least 1 full day) $         per half day           $        per full day
A half day is 3 hours and a full day is 6 hours. The fee includes two hours prior reading and preparation, and additional time is charged at the hourly rate in item 1. If the mediation is booked in for 1 day and terminated within the first 3 hours, a full day’s fee will still apply.
3 Cancellation fees:-
If cancelled after being appointed as Mediator and more than 5 business days before the Mediation $
If cancelled within 5 – 1 business days of the mediation $
If cancelled within 1 business day of the mediation $
4 Accommodation, meals and travel expenses                 (if applicable) At cost
5 Long distance calls, couriers, etc.                               (if applicable) At cost
6 Room hire fees (if applicable) At cost
7 Allocation of costs – equally between the Litigants, unless otherwise agreed in writing with the Mediator
Litigant 1                            %
Litigant 2                            %
Litigant 3                            %
Litigant 4 or                            %
All Litigants equally ______ (Tick if agreed)

GST:

The fees in items 1,2 and 3 are inclusive of GST.

Items 4 to 6 are invoiced at cost to the mediator, plus GST

Time for Payment:

The fee in item 1 is payable on the date of any preliminary conference; the daily fee in item 2 and room hire fees are payable on the day of the mediation conference, and on any further day of mediation; other fees are payable as incurred and invoiced.

Method of payment:

Cash, bank cheque or solicitors office or trust cheque

 


Schedule 4

ACKNOWLEDGEMENT AND UNDERTAKING AS TO CONFIDENTIALITY AND RECORDING

The Litigants and the Mediator having entered into this Mediation Agreement in accordance with which the Mediator will conduct a mediation the undersigned acknowledge by their signatures that they attend the mediation on the basis of their agreement to the terms of clauses 1 and 2 below.

1. Each of the undersigned undertakes to the Litigants and the Mediator:

(a) to keep confidential to themselves and any persons to whom by reason of the terms of their employment or any contract of insurance they may properly communicate it, all information disclosed during the Mediation including the preliminary steps (“confidential information”);

(b) not to act contrary to the undertaking in sub-paragraph (a) unless compelled by law to do so or with the consent of the Litigant who disclosed the confidential information;

(c) not to use confidential information for a purpose other than the Mediation;

(d) not to record or attempt to record or capture statements made, with the exception of file notes taken or prepared by the Mediator, a Litigant or a Litigant’s Legal Practitioners;

(e) not to record or capture or attempt to record or capture the image of any document, with the exception of file notes taken or prepared by the Mediator, a Litigant or a Litigant’s Legal Practitioners;

(f) to comply with the Surveillance Devices Act 1999 (Vic) regarding the no recording or monitoring of a private conversation without consent AND the Telecommunications (Interception) Act 1979 (Cth) regarding                    taping communications through the telecommunications system.

For the purposes of this clause, each of the undersigned undertakes to the Litigants and the Mediator that unless otherwise made by consent in writing, no consent is given to record or monitor any of the Mediation or private conferences associated with it, with the exception of file notes taken or prepared by the Mediator, a Litigant or a Litigant’s Legal Practitioners.

2. Each of the undersigned undertakes to the Litigants and the Mediator that the following will be privileged and will not be disclosed in or relied upon or be the subject of any subpoena to give evidence or to produce documents in any arbitral or judicial proceedings between the Litigants to the Mediation:

(a) any settlement proposal;
(b) the willingness of a Litigant to consider any such proposal;
(c) any admission or concession made by a Litigant;
(d) any statement or document made by the Mediator.

 

SIGNED by                               in the presence of:……………………………………………………….Signature of witness

 

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SIGNED by                               in the presence of:……………………………………………………….Signature of witness

 

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SIGNED by                               in the presence of:……………………………………………………….Signature of witness

 

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SIGNED by                               in the presence of:……………………………………………………….Signature of witness

 

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SIGNED by                               in the presence of:……………………………………………………….Signature of witness

 

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Signature of

Execution page to the Mediation Agreement

By signing this mediation agreement, the Litigants agree that they have had the opportunity of reading this whole document before signing it and to take legal advice about it, and their signatures signify their consent and agreement to all of the terms of this mediation agreement.

SIGNED by the Mediator in the presence of:……………………………………………………….

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SIGNED by                                   in the presence of:……………………………………………………….Signature of witness

 

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SIGNED by                                     in the presence of:……………………………………………………….Signature of witness

 

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This agreement is based upon the LEADR Association of Dispute Resolvers Standard Contract 2002 and is amended by the Mediator, Dov Silberman (member no 121054) © 2015