THE PARTIES AND THE MEDIATOR AGREE AS FOLLOWS:
This Agreement sets out the terms on which the Parties agree to mediate with the assistance of the Mediator who is being appointed by the Parties as Mediator, including the scope of the work to be undertaken and the basis upon which fees will be charged, in accordance with the provisions of the Mediation Act 2017, “the Act”
Appointment of Mediator
- The Parties acknowledge and accept that the appointment of the Mediator comes into effect upon the execution of this Agreement by the Parties and by the Mediator, and agree with the
- assistance of the Mediator, to try to settle the issue/s in dispute by mediation as per the provisions of this Agreement and unconditionally agree to its terms.
- All issues are open for negotiation. These can include, parenting, living arrangements, the home, financial support, property, education, health and welfare of the children, debts, pensions, insurance/assurance, and other issues pertaining to the parties. To ensure each party makes informed decisions, the parties agree to provide full and mutual disclosure of all financial and other relevant information at mediation.
The Mediator’s role
- Prior to mediating, the Mediator will make reasonable enquiries to determine if there may be an actual or potential conflict of interest, and he or she will not act, or continue to act, as a mediator where he or she determines that such a conflict exists.
- The Mediator will provide information that is relevant to this mediation in relation to their
qualifications, training and experience, continued professional development and their MII Code of Ethics and Professional Practice.
- The Mediator will not act as a legal adviser to any of the parties, nor provide legal advice. The mediator will ensure that all parties are aware of their right to seek independent advice, including legal advice, both during mediation and before signing any mediated agreement (“mediation settlement”).
- The Mediator will complete the mediation as expeditiously as possible, having regard to the nature of the dispute and the need for the parties to have sufficient time to consider the issues.
- The Mediator, where requested to do so by the parties, may make proposals to resolve the issue/s in dispute, but it is for the parties to this mediation to determine whether to accept any such proposals.
- The Mediator is neutral and impartial and will assist the Parties to isolate the issues, develop and explore options for resolution of the issues between them and, if possible, achieve an effective resolution of the issue/s in dispute by agreement between them. The Mediator will not make decisions for a Party or impose a solution on the Parties.
- The parties agree that where there are dependent children and they wish to express a view in matters that affect them, that their views shall be given consideration in this mediation process.
Parties taking independent legal advice
- The Parties recognise that they, to the extent that they have not already done so, and without prejudice to the terms of this Agreement which reflect the provisions of the Mediation Act 2017, (“the Act”), should take their own legal advice as to the legal nature of an Agreement to Mediate, the appointment of a Mediator and the rights, duties, responsibilities and powers of a Mediator appointed to assist parties to a mediation, under the terms of the Act. The Parties further recognise that they, to the extent that they have not already done so, should take their own legal advice as to the legal nature of a mediated agreement (“mediation settlement”), and the extent to which same may be agreed by the parties to be an enforceable agreement in accordance with section 11 (1)(b) of the Act.
Acknowledgements by the Parties
- The Parties (and the Mediator) hereby acknowledge and accept and agree that:
- Participation by the Parties in the mediation shall be voluntary at all times and that the Parties, or either, or any, or all of them may withdraw from the mediation at any time.
- The fact that proceedings may have been issued in relation to the issue/s in dispute shall not prevent the Parties engaging in mediation at any time prior to the resolution of the dispute.
- A party may—
(i) withdraw from the mediation at any time during the mediation,
(ii) be accompanied to the mediation by a person (including a legal advisor) who is not a party, or
(iii) obtain independent advice, including legal advice, at any time during the mediation.
- The Parties and the Mediator, having regard to the nature of the dispute, shall make every reasonable effort to conclude the mediation in an expeditious manner which is likely to minimise costs.
- Subject to the provisions of this Agreement and subject to the confidentiality of the mediation, the Mediator may withdraw from the mediation at any time during the mediation by notice in writing given to the Parties stating the Mediator’s general reasons for the withdrawal.
- A withdrawal by the Mediator from the mediation shall not of itself prevent the Mediator from again becoming the mediator in the mediation.
- Where the Mediator withdraws from the mediation, the Mediator shall return the fees and costs paid in respect of that portion of time during which the Mediator was paid to act as the Mediator and for which he or she will no longer act as the mediator.
- It is for the parties to determine the outcome of the mediation.
- The fees and costs of the mediation shall not be contingent on its outcome.
Confidentiality & Privilege
- The Parties, their advisors, all persons attending the mediation (to include non-parties or supporters of any kind of the Parties) and the Mediator, agree that any written summaries of the Parties’ cases, all documents made available to the Mediator or by the Mediator or exchanged by the Parties, any statements whether oral or written made in the course of the mediation by the parties or the mediator and any concessions or admissions of law or fact, shall be entirely and completely confidential in accordance with section 10 of the Act and shall be privileged accordingly, provided that the foregoing shall not prohibit the discovery, inspection or production of documents which, had the mediation not taken place, would otherwise be subject to discovery, inspection or production.
- Evidence introduced into or used in the mediation that is otherwise admissible or subject to discovery in proceedings shall not be or become inadmissible or protected by privilege in such proceedings solely because it was introduced into or used in the mediation.
- The Mediator may hold private sessions with one party, or one party and their legal adviser. These private sessions are designed to improve the Mediator’s understanding of that party’s position and to facilitate the Mediator in expressing each party’s viewpoint during discussions. Information gained by the Mediator in such a session is confidential unless (a) it is in any event publicly available or, (b) the Mediator(s) is specifically authorised by that party and/or their legal adviser to disclose it. The Mediator will respect the overall confidentiality of the proceedings, except where he/she has a reasonable belief that disclosure to an appropriate agency is required under s 10 of the Act. Where such a disclosure is deemed necessary, the Mediator will inform the parties.
- The parties agree not to subpoena or otherwise require the mediator to testify or produce records, notes or any other information or material whatsoever arising out of the mediation in any future or continuing proceedings.
- The Mediator will not voluntarily disclose any information obtained through the mediation process except as per s 10 of the Mediation Act.
Authority to settle.
- The Parties will attend mediation with the authority and ability to resolve issues and shall endeavour to reach a complete settlement of the matter(s) in dispute. Furthermore, the Parties agree to negotiate in good faith, to include;
(a) a willingness to consider putting forward options for the resolution of the dispute, and
(b) a willingness to consider such options for the resolution of the issue/s in dispute as may be put forward by another party or through the mediator, or by the mediator in accordance with section 8(4) of the Act, as appropriate;
- A mediation session generally lasts an hour. On average, mediation can take between five – seven sessions, but this can vary depending on the complexity of issues presented.
The parties will each attend individual intake sessions, after which, mediation may include sole and/or joint face-to-face sessions, Zoom, text, email, phone communications and drafting of agreements. The Mediator will guide the process and ensure that the parties are aware of the manner in which the mediation will be conducted at all times. For the purposes of s18 of the Act, the Agreement to Mediate is deemed signed on the date that the second party signs this agreement. Browne & Co Mediation reserves the right to use additional mediators from the practice where they believe that it is required, any additional mediator does not affect the rate charged. A trainee mediator may observe, but only where consent is given by both parties.
- The parties acknowledge that full disclosure of all relevant information is essential to the
mediation process, to include mutual disclosure of assets where required, to ensure that the mediation settlement adequately protects the rights and entitlements of the parties and their dependents, if any, as provided in section 11 (3)(a) of the Act.
Withdrawal/Termination of the mediation.
- The parties acknowledge that it is their intention to engage in mediation until a settlement is achieved, or until the agreed-upon time set aside for mediation has elapsed. The parties also acknowledge that as the process is entirely voluntary, either party may withdraw from mediation at any time, and that no explanation is required. As the Mediator is obliged by law to make every reasonable effort to conclude mediation in an expeditious manner, he/she may determine that mediation has reached an impasse, or can serve no further purpose, and may initiate the suspension (temporary withdrawal), or the termination of mediation, the general reasons for which will be expressly communicated to the parties. Breach of the terms of this agreement by a party will be grounds for the mediator withdrawing. If the dispute is not resolved through mediation , the right of the parties to litigate and seek a fair trial remains unaffected.
Preservation of rights.
- If no written settlement agreement is signed by the Parties to settle their dispute, all the Parties’ rights shall be reserved and shall remain in all respects unaffected by the mediation save to the extent provided for in this Agreement. The Parties agree that in such circumstances any documents and written summaries of case furnished to them by the other Party shall be forthwith returned to that Party, and that no copies shall be kept by them. Any documents furnished by the Parties to the Mediator shall, in such circumstances, be returned promptly.
- The Parties agree that the Mediator may not be called as a witness in any legal or similar proceedings or in any form of alternative dispute resolution in relation to the dispute or any matter related to or concerning the subject matter of the mediation.
Non-reliance on statements made.
- The Parties agree that they cannot rely upon any perceived or actual expression of opinion, advice or comment made by the Mediator during the mediation in or for the purposes of any legal or similar proceedings or any form of alternative dispute resolution in relation to the dispute or any matter related to or concerning the subject matter of the mediation.
Exclusion of Liability
- The Parties agree that the Mediator shall not be liable to the Parties in contract, tort (including negligence and/or breach of statutory duty) or otherwise howsoever except for fraud or fraudulent misrepresentation.
Enforceability of any settlement agreement
- The Parties agree and acknowledge and accept that it is for the Parties to determine—
- if and when an agreement (“mediation settlement”) has been reached between them, and
- whether the agreement (“mediation settlement”) is to be enforceable between them.
Applicable Law and Courts
- This Agreement shall be governed by and construed in accordance with Irish law and the Parties agree to submit to the exclusive jurisdiction of the Courts of Ireland as regards any claim or matter arising under or in relation to this Agreement.
Statutes of Limitation
- For the purposes of s 18 of the Act the Agreement to Mediate is “signed” on the date that the last party signs this Agreement
Data Retention Policy
- In compliance with the requirements of the General Data Protection Regulation (GDPR) in force since 25th May 2018, a client’s personal information and documentation is confidential and will be stored securely by the Mediator. Browne & Co Mediation maintains a record of your data to provide the service of mediation and once mediation has ended, some data is retained to comply with our obligations under taxation and legislation, and the terms of our professional indemnity insurance.