In Part 1 of this series I referred to some of the basic principles underlying a successful mediation. But why should the parties consider themselves bound by them? This is where the formal mediation agreement comes in.
CEDR mediators will tend to start with the CEDR model agreement. The parties have the right to vary that document but only by agreement, and in my experience alterations of substance are relatively rare. So what can you expect to be asked to sign up to?
1. First, a commitment that the mediation process represents a good faith attempt by each party to settle. Though this is just words and in that sense no more legally enforceable than an oral statement to the same effect, it is a representation which the mediator can more easily refer a party back to by virtue of its being in writing. It may also be of some reassurance to a party otherwise sceptical of the other’s intentions. The model agreement refers to just three parties, usually employee and employer, plus the mediator. In disputes with more moving parts, for example two employees at odds plus an employer which will need to be involved in the resolution between them, the cast list may grow.
2. To avoid arguments at a late point, a promise that the attendees for each party have full authority to bind it by the terms of any settlement.
3. An express reiteration of the confidential and without prejudice “bubble”” around the process. It requires the parties to agree that they will not call the mediator as a witness in any proceedings, nor make any application for disclosure of his/her notes. The agreement also prohibits the mediator from giving evidence or producing case notes voluntarily.
4. The CEDR model agreement provides that no settlement reached at the mediation will be legally binding until set out in writing and signed by the parties. This is not always adhered to, especially where the mediation moves into facilitation territory and a mutual clarification or clearing of the air may make the necessary difference without anything more formal than a handshake. Pushing the parties to put something in writing in these cases can force them into defensive positions and so be counter-productive. However, if the mediation is to resolve a live dispute where the employee has brought proceedings or is still in time to do so, then a settlement in the form of a statutory compromise agreement is most usual.
5. Last, the mediator’s fees. The default position under the model agreement is that these are split equally between the parties. Sometimes just to get the thing underway the employer will agree to pay the whole cost, but be aware that who pays the fee is a matter of no interest to the mediator and you get no “brownie points” as employer in such a case.
Next week, if you are asked to provide a position paper in advance of the mediation, what should it say to be most helpful to the process?