Agreement to Mediate
Name of Case: …………………………………………………………………………………….
Reference: M/____________________
BETWEEN:
Party 1 …………………………………………………………………………………….
AND
Party 2 …………………………………………………………………………………….
The parties and the Representatives, signing this Agreement, agree as follows:
1. The Mediator for this dispute is Julian Donnelly of James Rosa Associates Limited, The Old Rectory Business Centre, Springhead Road, Northfleet, Kent, DA11 8HN, contact telephone number 0845 680 7217.
2. The mediation will be held on _____________________, commencing at _____________.
3. The Mediator, and all the Parties listed in the Schedule and their Representatives, agree to act in good faith at the Mediation, and agree that the provisions of James Rosa Associates’ Mediation Rules 2017 Edition (“The Rules”) attached hereto, shall apply to this mediation.
4. The Parties authorise the Mediator to conduct the mediation using the facilitative procedures set out in the Rules.
5. The Parties and their Representatives in signing this Agreement confirm that they specifically acknowledge and understand that the Mediator has accepted their invitation to mediate this matter on the sole basis that by virtue of the Rules and the intrinsic nature of mediation, the Parties agree that no liability shall arise or accrue against the Mediator or James Rosa Associates Limited as a result of the conduct of the Mediation by the Mediator or as a result of the administration of the Mediation.
SCHEDULE
PARTIES AND REPRESENTATIVES
Party 1
Name ________________________
Address _________________________
_________________________
Representative _________________________
Firm _________________________
Telephone _________________________
Email _________________________
Party 2
Name ________________________
Address _________________________
_________________________
Representative _________________________
Firm _________________________
Telephone _________________________
Email ________________________
JAMES ROSA ASSOCIATES LTD MEDIATION RULES – 2017 EDITION
1. INTERPRETATION
1(1) In these Rules, the following terms shall have the following meanings:
(a) “Mediator” means a member of James Rosa Associates Limited’s staff appointed by the Parties as a neutral to conduct the mediation. The Mediator is an independent contractor chosen by or agreed to by the Parties with whom they contract for services rendered. The Mediator is not a person who will provide legal or professional advice to the Parties or their Representatives or who will give a judgment or an award.
(b) “Agreement to Mediate” means a legally-binding contract to mediate, prepared by James Rosa Associates Limited for the Parties, their Representatives, the Mediator and any Non-Parties attending the Mediation, to be executed prior to the commencement of the Mediation, containing various provisions relating to the process of Mediation, confidentiality, privilege, liability, and the duties and obligations of the Parties to each other, to the Mediator and James Rosa Associates Limited. The Agreement to Mediate requires agreement to and compliance with these Rules.
(c) “Party” means a Party to a dispute, controversy, or legal action who is a participant in the mediation or who is represented by a participant in the mediation.
(d) “Representative” means the lawyer, counsel, attorney, or other authorised representative of the Party.
(e) “Evaluative Mediation” shall mean a process of mediation in which the Parties jointly invite the Mediator to comment on the merits or substance of the case, and/or to provide a non-binding evaluation.
(f) “Facilitative Mediation” shall mean a process of mediation in which the Mediator offers no comment on the merits or substance of the case, nor provides any evaluation but instead assists the Parties to an agreement using principled negotiation: the Mediator may in his or her absolute discretion comment on the use of the process of the Mediation if such comment is likely to assist the Parties.
(g) “Settlement Agreement” means a document signed by the Parties or their Representatives before the conclusion of the Mediation, setting forth agreed terms of settlement between the Parties which are intended by them to be legally binding.
1(2) These Rules shall be interpreted in such a way as to provide the Parties with an efficient and effective Mediation.
2. AGREEMENT OF PARTIES
2(1) These Rules, and all amendments to them, shall be deemed to be part of the Agreement to Mediate which provides for Mediation with the Mediator.
2(2) Subject to the agreement of the Mediator, these Rules may be varied at any time by written amendment signed by the Parties or their Representatives.
3. PRIVACY AND CONFIDENTIALITY OF MEDIATION
3(1) The Mediation is private and confidential.
3(2) A person who is not a Party or a Legal Representative may only attend the Mediation with the consent of all of the Parties and of the Mediator: every such person shall sign Schedule 1 before the start of the Mediation.
3(3) Every Party and Legal Representative agrees that all offers, promises and proposals, whether oral or written, actions, determinations, representations and statements (including but not limited to admissions) made in the course of the Mediation by any of the Parties, their agents, employees, experts, Legal Representatives and all statements, comments, or observations made or relayed, by the Mediator, and all notes, documents and reports prepared or exchanged during the Mediation are “without prejudice” and for the purpose of negotiation only.
3(4) The Parties agree that any such offers, promises, proposals, conduct, statements, notes, documents, and reports shall not be disclosed to any third party and they shall not be offered as evidence in any arbitration, judicial or other proceeding, at any time.
3(5) Notwithstanding Rule 3(4), the parties acknowledge that evidence that is otherwise admissible shall not be rendered inadmissible because it has been used in a Mediation.
3(6) Neither the Mediator, nor any person present observing the Mediation nor any of James Rosa Associates Limited’s staff shall be invited or compelled by the Parties, jointly or severally, to appear as a witness in any pending or future adversarial or judicial proceeding involving any one or more of the Parties or relating in any way to the subject matter of the Mediation.
3(7) The Parties agree that they shall not jointly or severally seek to summons the Mediator or any person observing the mediation or any of James Rosa Associates Limited’s staff.
3(8) Any notes made by the Mediator are confidential to the Mediator and shall not be available to the Parties at any time, nor subject to subpoena for production as evidence in any arbitration, judicial or other proceeding. The Mediator undertakes that he or she shall in any event destroy any notes taken on completion of the mediation.
4. BASIC PRINCIPLES
4(1) The Parties and their Representatives agree that each Party shall attend the Mediation with full authority to settle.
4(2) At the Mediation, the Parties agree that they will be prepared to make a brief oral statement explaining what they wish to achieve from the process and acknowledge that they are expected to participate in good faith in the process conducted with the assistance of the Mediator.
4(3) The Parties agree where reasonably practicable to make available to the Mediator such copies of documents or materials as are likely to be needed in order effectively to negotiate.
4(4) The Parties agree that the Mediator may meet privately (caucus) with each Party and its Legal Representative during the Mediation if the mediator considers that it will assist the process. Any Party and Legal Representative may request a private caucus with the Mediator at any time.
4(5) The Parties agree that there shall be no electronic recording by any means of the mediation, nor any verbatim stenographic record taken of the Mediation. Parties may make notes but these must not be shown to any person not a signatory to the Mediation Agreement, without the consent of the other Party and expressly are not admissible in any court, arbitration or other proceedings.
5. MEDIATION PROCEDURE
5(1) The Mediator will conduct the Mediation using Facilitative Mediation as defined in Rule 1(1)(f). The Mediator will conduct process non-judgmentally by exploring the interests, needs and concerns of the Parties allowing them to generate options for a mutually agreed resolution.
5(2) The Mediator will not advise any person, nor comment or offer legal or professional opinions. The Parties will rely on their own counsel or Legal Representatives for legal or professional advice.
5(3) The Mediator will not propose a settlement nor draft any offers of settlement.
5(4) The Mediator will continue to use Facilitative Mediation techniques until a settlement is reached, or the Mediation is adjourned or terminated as set out below.
Evaluative Mediation
5(5) Evaluative Mediation is not offered by James Rosa Associates Limited. The Mediator will not evaluate or advise.
Termination of the Mediation
5(6) Whatever the process used in Mediation, the Mediation shall be terminated:
(a) by agreement between the Parties; or
(b) if a settlement is reached by the Parties; or
(c) at any time during the Mediation, if the Mediator in his/her absolute discretion decides it should be terminated in which case the Parties agree they shall not challenge that decision nor shall the Mediator give or be asked for a reason for the termination; or
(d) no agreement has been reached in the time available and it is either impracticable to take further time, unless the Parties and the Mediator agree to adjourn the mediation; or
(e) a Party does not wish to continue in Mediation.
5(7) On termination, the Mediator will as soon as reasonably practicable destroy all notes and documents save for the Agreement to Mediate and any Schedules to that Agreement and/or the Rules.
6. SETTLEMENT AGREEMENT AND FORMALITIES
6(1) Any settlement agreed at Mediation will not be deemed to be concluded or to be legally binding until the Parties or their Legal Representatives sign a Settlement Agreement at the mediation setting forth the terms thereof.
6(2) The Settlement Agreement shall not be drafted or signed by the Mediator.
7. EXCLUSION OF LIABILITY
7(1) Neither the Mediator nor James Rosa Associates Limited or its staff, employees or agents, shall be liable to any Party or Legal Representative for any act or omission howsoever arising in connection with any Mediation conducted by the Mediator.
7(2) Without prejudice to the Agreement to Mediate and to the exclusions or limitations set out in these Rules, should contrary to the foregoing provisions any liability be found to attach to the Mediator then the Parties agree that it shall be limited to the maximum sum of £2,000,000.
8. FEES AND COSTS OF THE MEDIATION
8(1) The Parties will be responsible for the fees and expenses of the Mediator (“the Mediation Fees”) in accordance with James Rosa Associates Limited’s Terms and Conditions of Business current at the date of this Agreement (including any provision for additional hours if the mediation process extends beyond the allocated hours).
8(2) By way of a summary of the terms and conditions and not by way of a complete recital, the Parties agree jointly and severally to pay to James Rosa Associates Limited:
(a) £500+VAT on reserving the mediation by way of a non-refundable deposit; and
(b) the balance of the mediation fee in cleared funds before the date of the mediation – the complete fee covers preparation of half a day (up to four hours), the Mediation of up to six working hours, and reasonable local travel to the Mediation; and
(c) the actual cost of any non-local travel and subsistence where the same is not booked and paid for by the parties themselves: reimbursement shall by immediate transfer of cleared funds on presentation of receipt support fee notes; and
(d) travel time at the daily rate where a flight is scheduled to exceed one hour: payment shall be in advance before the mediation; and
(e) overtime at the hourly rate of £250+VAT for any additional hours on one day, or at the standard daily rate for an additional mediation day: the same to be paid by immediate transfer of cleared funds on receipt of a fee note; and
8(3) The Parties shall be jointly and severally liable for the costs of any venue, interpreter, or other additional costs, together with the Mediator’s airfares if appropriate to be paid at business class rates and to include appropriate accommodation where reasonably necessary.
8(4) If contrary to Rule 3(6) or otherwise, any Party does seek to call the Mediator or any other person as a witness or make such an application, that Party will fully indemnify the Mediator or the James Rosa Associates Limited’s employee or staff in respect of any costs any of them incur in resisting and/or responding to such an application, including reimbursement at the Mediator’s standard hourly rate (£250+VAT) for the Mediator’s time spent in resisting and/or responding to such application including but not limited to waiting, travelling, preparing, attending or being at Court or any other tribunal.
8(5) Unless otherwise agreed by the Parties and James Rosa Associates Limited in writing, each Party agrees to share liability for the Mediation Fees equally and also to bear its own legal and other costs and expenses of preparing for and attending the Mediation (“each Party’s Legal Costs”) prior to the Mediation. However, each Party further agrees that any court or tribunal may treat both the Mediation Fees and each Party’s Legal Costs as costs in the case in relation to any litigation or arbitration where that court or tribunal has power to assess or make orders as to costs, whether or not the Mediation results in settlement of their dispute.
LEGAL EFFECT AND STATUS OF THE MEDIATION
9(1) The Agreement to mediate and these Rules are governed by the laws of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to decide any matters arising out of or in connection with this Agreement and the Mediation.
SIGNATURE
I have read, understand and agree the provisions of this Agreement and the attached Rules.
Signed: _________________________ for and on behalf of Party 1 and its Representatives
Signed: _________________________ for and on behalf of Party 2 and its Representatives
Signed: _________________________ Mediator (who also signs for James Rosa Associates Limited)
Dated ________/____________/_________