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Agreement to Mediate

AGREEMENT TO MEDIATE

BETWEEN

****

AND

****

(hereafter referred to collectively as “the parties”)

The mediator

  1. The parties agree to engage Joe Harman trading as Harman Dispute Resolution (the mediator) as a mediator to mediate their dispute, acting as a neutral facilitator to assist the parties to reach an informed and voluntary settlement.  When parenting issues are involved, and as is addressed in this agreement, a co-mediator may also be engaged and such engagement forms part of this agreement.

The Mediation Process

  1. Wherever the term “mediation” is used in this agreement, the process of mediation for which the mediator is engaged shall, subject to the agreement of the parties, involve both mediation and conciliation as defined by the former National Alternate Dispute Resolution Advisory Council (NADRAC) as well as Neutral Third-Party Evaluation.
  2. To the extent that conciliation incorporates within its definition the phrase that the mediator/conciliator may “give expert advice on likely settlement terms” the parties understand and agree that such advice as may be given by the mediator during the mediation process:
    1. is not legal advice.
    2. is the opinion of the mediator, as a former academic and judge of the Federal Circuit Court of Australia, as to relevant and identifiable legislative provisions and previously decided cases (including those of appellate courts and first instance trial judges, including those previously determined by the mediator in their then capacity as a judge) which would be relevant to this case and how the legal principles identified in those matters might be applied to the facts of this case (as agreed or alleged by the parties) and such opinion is not legal advice as to how the specific case, the subject of the mediation, would be determined if the matter were to proceed to hearing before a court nor the specific verdict which might be obtained nor the settlement to which the parties should agree.
    3. is not binding upon the parties.

and, further, the parties understand and agree that they will obtain legal advice solely from their legal representatives retained for the purpose of the mediation and, to that end, shall have such opportunity as they desire to obtain such advice from their legal representatives prior to and during the mediation.  

Preparation

  1. The mediator will discuss, with the parties and their lawyers, how the mediation will proceed, however, the mediator will ultimately determine how the mediation proceeds including whether all parties are present or on camera at the same time (or not) and if and when separate meetings between the mediator and each party occur (“shuttle mediation”).  Absent agreement by all parties, mediations shall proceed as shuttle mediation.
  2. The mediator shall, prior to the mediation:
    1. Hold a joint meeting (by zoom or telephone) with the lawyers for each party so that agreement can be reached as to the pre-mediation preparation required to by each party, so as to allow each party to be fully and properly informed and to make informed decisions during the mediation.
    2. Subject to each party contacting the mediation to arrange it, hold a meeting (by zoom or telephone) separately with each party to discuss the mediation process and undertake an assessment of if and how the mediation should proceed.
    3. Confirm the proposed time and date of the mediation and how the mediation will proceed and, if proceeding by zoom or other electronic means, hold a brief online check with all parties and their lawyers, prior to mediation, to ensure that all are able to connect and engage with the platform used.
  3. Prior to the mediation commencing the parties shall, unless agreed otherwise:
  1. Provide to each other copies of all documents required by the Central Practice Direction 2020 and the Federal Circuit and Family Court of Australia Rules 2020 and/or which would be relied upon to prove any contentious fact.
  2. In the event that there is not already an agreement as to the value of a significant asset, obtain a joint valuation of that asset.
  3. Consult with each other and produce and provide to the mediator a joint balance sheet (setting out all assets, liabilities and superannuation to be considered).
  4. Formulate and provide to the other party and the mediator, a document setting out the orders that they propose, a brief outline of how that proposal is formulated and the nett effect of the proposal (i.e. what each party will receive under that proposal).

Confidentiality and Admissibility

  1. Each person involved in the mediation intake process and/or mediation, (including each party, their lawyer and the mediator) shall treat all communications which occur in arranging and whilst attending mediation (including any private session between the mediator and one party and their lawyer) as confidential, unless all persons involved in that communication agree to the disclosure of that communication save and except as required or permitted by the Evidence Act 1995 (Cmwth) and/or as required by a law of a State or Territory laws regarding threats of violence to persons or property or as may be required by mandatory reporting obligations.
  2. Any document created during the mediation or in preparation for the mediation, save and except an agreed balance sheet, shall be treated as confidential and shall not be disclosed for any purpose save with the consent of all parties or for the purpose of providing instructions to or obtaining advice from a lawyer, accountant or lender or as permitted by the Evidence Act (Cmwth) 1995.
  3. The parties shall not refer to the content of the mediation in any court process (save as to costs) nor seek to call or compel the mediator to attend to give evidence or produce any document.
  4. No party to the mediation shall use any recording devices during the mediation, whether audio or visual, nor allow or permit any persons other than the parties, their lawyers and the mediator to be present at the mediation unless agreed by all parties.

Termination of Mediation

  1. If the mediator determines that it is not appropriate to continue with the mediation process for any reason, then the mediator may terminate the mediation and should either of the parties wish to terminate the mediation at any time then they shall, before doing so, discuss their intention to terminate with the mediator in a private individual session.

Fees

  1. The parties, jointly and severally, agree to meet the mediator’s costs, payable in advance, as follows:
    1. Arranging and preparing for the mediation $1,000 incl GST
    2. The mediation session (9:30am-2:30pm) $2,000 incl GST
    3. A subsequent (second) session $2,000 incl GST
  2. If the parties reach agreement, then it is the responsibility of the parties and their lawyers to draft an appropriate document formalising that agreement by way of orders or Binding Financial Agreement and the mediator will not assist the parties in doing so.
  3. Cancellations and postponement

Once a mediation date has been fixed, that date can, with the agreement of all parties, be cancelled or postponed.  Any cancellations or postponements are subject to the following:

  1. If the parties reach agreement prior to the first scheduled mediation date and the mediation date is cancelled for that reason then, if the mediation was to be conducted online (rather than in person), the fees paid by the parties for the mediation session ($2,000) shall be reimbursed and, if the mediation was to occur in person and provided that at least 24 hours’ notice of settlement is given (i.e. prior to travel being undertaken), then, again, the mediation session fee ($2,000) shall be reimbursed.  If the mediation is cancelled for any other reason or if travel for an in-person mediation has already commenced, then the fee for the mediation session may be reimbursed at the mediator’s discretion.
  2. If the parties wish to postpone a first scheduled mediation date to a different (second) date then, provided that all fees have been paid, the mediation date will be postponed.  If the mediation is then cancelled for any reason, including settlement, before the second scheduled mediation date, then the fee for the mediation session will not be refunded save at the mediator’s discretion.
  3. If the parties wish to postpone a second scheduled mediation date, then a third mediation date will be set but on the basis that no refund of fees will occur and no further postponements will be considered other than on the basis of a second (subsequent) mediation fee being incurred.

Co-mediation 

  1. When parenting issues are involved in the issues to be mediated then a second mediator may be engaged, either at the request of the parties or at the discretion of the mediator, to co-mediate the dispute.  If the dispute is co-mediated, then fees are not increased and remain as set out in this agreement (i.e. there is no additional cost for co-mediation).

Interpreters

  1. If a party requires an interpreter to participate in the mediation process, including any pre-mediation meeting, then:
    1. The parties and their lawyers are responsible for identifying the need for an interpreter and the specific language and dialect required of the interpreter.
    2. The mediator will arrange, engage and pay for an interpreter to assist in pre-mediation meetings with the parties.  There will be no addition cost for this.
    3. The parties and their lawyers are responsible for arranging, engaging and paying for interpreters to assist during the mediation.

Definitions

  1. The following definitions from the former National Alternate Dispute Resolution Advisory Council (NADRAC) glossary of terms, are, for the purposes of this agreement, adopted:

Mediation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or subject to an existing contractual agreement. An alternative is ‘a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator) negotiate in an endeavour to resolve their dispute’.

Conciliation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the conciliator), identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach an agreement. 

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