Mediation documents — overviewMediation agreements

The mediation agreement will often deal with:

• an agreement by the parties to take part in a mediation to try to settle the dispute

• a clause that the parties may leave the mediation at any time

• the identity of the dispute that will be subject to the mediation

• the method by which the mediator and any assistant mediator are appointed

• the place and time of the mediation

• confidentiality

• confirmation that the discussions are without prejudice

The mediator may wish to exclude his liability for anything done in connection with the conduct of the mediation. The agreement is signed at the start of the mediation at the joint meeting with the mediator.

Drafting the opening statement

At the start of the mediation, the mediator will usually convene a meeting of all parties. The parties will be given an opportunity to make an opening statement. This will not normally last more than 30 minutes. Its objectives are:

• to influence the other party's ultimate decision maker

• to inform the mediator about the dispute

• to give your client his/her 'day in court'

The opening statement can be made by the client, the lawyer or an expert witness.

Issues to be considered when drafting the opening statement include:

• weaknesses of the other side's case

• commercial interests underlying your client's position

• acknowledging the other party's position

• the emotional / political / social sides of the dispute

• offers and concessions you are prepared to make in the negotiations

• apologies

• possible settlement options

• strengths of your own case

• any areas in which you are not prepared to negotiate

Case summary and supporting documents

The case summary will be exchanged with the other parties in advance of the mediation, normally a couple of weeks before. It will generally be between two and ten pages long and may cover:

• the factual background of the dispute

• the key issues in dispute

• key arguments on quantum

• details of prior offers and/or negotiations

• common ground

The summary is usually accompanied by a bundle of supporting documents, agreed by the parties.

Settlement agreements and Tomlin Orders

Although the outcome of a mediation itself is not binding on the parties, they are likely to want to make the outcome binding by recording its terms in a legally binding contract - a settlement agreement.

If litigation is under way, the action will need to be stayed. This is usually done by applying for a Tomlin Order.

Enforcing settlement agreements

If a party fails to comply with the terms of the Tomlin order it can be enforced through the court.

If there is no ongoing litigation or arbitration proceedings, and a party fails to comply with the terms of a settlement agreement, it can be enforced as a legally binding contract between the parties through the remedy of breach of contract. This will require court or arbitration proceedings.