Agreement to Mediate

MEDIATION AGREEMENT

Between the following participants:

and

1         INTRODUCTION

In order to settle the dispute between the participants named at the end of this agreement (“the participants”), they have agreed voluntarily to try to resolve their dispute through mediation. 

2         THE MEDIATOR

2.1     The participants appoint as their mediator John O’Leary, an attorney and mediator based in Cape Town, South Africa. 

2.2    The mediator is accredited by the Centre for Effective Dispute Resolution (CEDR) in the United Kingdom, and by Conflict Dynamics (Pty) Ltd and the Family Mediators’ Association of the Cape (FAMAC) in South Africa.

2.3     The mediator agrees that he will:

2.3.1 at all times act with the utmost good faith;

2.3.2 act impartially and not give legal advice to any participant;

2.3.3 respect confidentially;

2.3.4 assist the participants to settle their own dispute themselves without the mediator deciding the outcome; and

2.3.5 provide a summary of any mutually acceptable proposals at the end of the process;

3         CONFIDENTIALITY AND DISCLSOURE

3.1    The participants acknowledge that confidentiality in relation to third parties is fundamental to the mediation process. However, they have the right, at all times, to consult professionals such as lawyers to advise them independently of their respective rights and obligations.

3.2    The participants agree that the mediation will take place off the record and without prejudice to create an opportunity for the participants to negotiate freely in the knowledge that their negotiations cannot be disclosed in litigation.

3.3    The ordinary legal principles about disclosure of documents apply in the mediation. Documents which must be discovered or disclosed in the ordinary course of court proceedings, are not confidential. Participants agree to make full disclosure to each other and the mediator of all information and documents relevant to the issues in dispute between them when called for in the mediation.

3.4    Settlement proposals are confidential until such time as the mediator is authorized to convey them to the other participant, and are protected by settlement privilege, as are settlement negotiations within the mediation.

3.5    The participants agree that they will not under any circumstances call upon any person who is a party to or is involved in the mediation, including the mediator and any co-mediator, for giving evidence in any subsequent court proceedings regarding what took place during the mediation.

4         TERMINATION

4.1    The mediator and either of the participants are free to terminate the mediation at any time without giving reasons for the termination.

4.2    In such event, the provisions of clauses 3 and 6 shall nevertheless continue to apply.

5         MEDIATION OUTCOMES 

5.1    In the event of agreement being reached between the participants arising from the mediation the points of agreement shall be recorded by the mediator in writing in a Mediation Summary or draft settlement agreement, which shall be given to the participants on settlement of any outstanding mediation costs.

5.2    The participants understand that they are advised to show the Mediation Summary or draft settlement agreement to separate legal practitioners of their choice for comment and legal advice.

5.3    The participants agree that no proposals arising from the mediation process shall be binding upon them until such proposals have been recorded in a settlement agreement and signed. That agreement may be submitted to court for incorporation into any order which may subsequently be granted by the court. This will be done by the attorney acting for whichever party is to be the initiator of the court proceedings, if court proceedings are required.

5.4    The participants acknowledge that the function of the mediator is to facilitate settlement of their dispute and not to make decisions on behalf of the participants.

5.5    If a settlement is reached, it will be as a result of proposals that the participants have each found acceptable to themselves.

5.6    If the mediator believes that a settlement cannot be reached in the mediation, the mediator shall have a discretion, but not an obligation, to make non-binding recommendations in writing to both participants setting out possible ways of settling the Dispute

6         COSTS

6.1    The fees for the mediation are charged at an hourly rate for correspondence, preparation, sessions and time spent drafting mediation summaries (if required) and travelling to mediation meetings (if necessary). The practice is not required to register for VAT. The hourly rate will be agreed at the start of the mediation.

6.2    Fees shall be due and payable to John O’Leary Attorney & Mediator on presentation of his invoice. If an invoice is not paid on presentation the mediator may suspend further work until it is paid. The participants shall each pay half of the mediation fees, unless a different proportion is agreed at the start of the mediation. 

7         UNDERTAKING BY THE PARTICIPANTS 

7.1    The participants undertake in good faith to:

7.2    Make full disclosure to each other of all information and documentation relevant to the issues in dispute between them at an early stage of the mediation;

7.3    treat each other’s interests with respect throughout the mediation with a commitment to genuinely attempting to resolve their dispute;

7.4    copy all communications relevant to the mediation to each other and to the mediator;

7.5    not to record the sessions electronically in any way;

7.6    when mediations are conducted electronically, to ensure that only people authorised by the participants and the mediator have access to the meeting.

Agreed to by the following duly authorised participants:

___________________                  ____________________

John O’Leary     ___________________

Date:

Place: