Agreement to Mediate Document

This was the first work undertaken by the Project.  There was a keen awareness that getting the foundation for the mediation, found in the Agreement to Mediate, was essential.  It is a building block for the mediation process leading to the mediation outcome.

A discussion document giving more background along with a sample agreement to mediate document has been produced. This paper can be shared openly with justice departments, court services, judges, lawyers, mediators and others working with international families.  We invite feedback and comment which in turn will lead to further versions reflecting on global experience.

An Agreement to Mediate could be simply defined as “an agreement signed by the parties to a family mediation and the mediator(s) setting out the parameters of the mediation.”

The sample agreement to mediate document is explicitly a PDF rather than a precedent Word document as the intention is that mediators and others adapt in creating their own documentation by amending or adding as applicable to the core document for distinctive national or mediation circumstances.

The following key terms have been identified following a review of sample agreements to mediate, the European Code of Conduct for Mediators, guidelines/regulation and statutory provisions:

  • The appointment of the mediator
  • The role of the mediator (impartiality)
  • The manner in which the mediation is to be conducted
  • The manner in which the fees/costs of mediation will be paid
  • When and where the mediation will be conducted
  • Confidentiality
  • Voluntariness
  • The right to seek legal advice
  • The manner in which mediation may be terminated
  • Decision-making
  • Child consultation
  • Any other terms as may be agreed between the parties

There are at least the following key principles:

  • Confidential
  • Impartial
  • Voluntary
  • Self-determination

 

Whether mediation confidentiality has been established by custom and practice, case-law or by a statutory framework, it remains a key principle of mediation. It should be noted that the EU Mediation Directive specifically anticipates an open outcome, as does some other EU provisions, being primarily based on the civil law principles.  It is important to distinguish between the confidentiality within the mediation process itself and the confidentiality of the outcome.

 

A 2021 England and Wales guide to family mediation for judges, magistrates and legal advisers, states that an agreement to mediate should set out the scope of, and limitations to confidentiality, and that in signing the agreement the parties understand:

  • that all communications in mediation are confidential and,
  • will not be referred to in evidence in any court proceedings about the same issues, and
  • will not be used in affidavits or statements, and
  • there are exceptions to confidentiality where the mediator needs to disclose information where there is “significant risk to the life, health or safety of the children, the parties or anyone else or in relation to money laundering or other unlawful acts.”

 

The guide notes that a court cannot compel mediators to disclose information about any mediation, except where there is an over-riding obligation in law and that mediation privilege may be waived with the consent of both parties.

Section 4 of the European Code of Conduct for Mediators states that “all information arising out of or in connection with the mediation” is confidential unless the mediator is compelled by law or grounds of public policy to disclose it.

 

Confidentiality in mediation in Ireland is governed by statute, specifically section 10 of the Mediation Act 2017, “all communications (including oral statements) and all records and notes relating to the mediation shall be confidential and shall not be disclosed in any proceedings before a court or otherwise.” Section 10 (2) lists the exceptions to confidentiality, in circumstances where disclosure is necessary.

 

Three of the key principles would appear to be universally understood wherever mediation is practised.  The 4th is its voluntary nature.  A consultation by the Ministry of Justice in England considered whether it should be mandated for separating families but in January 2024 it was announced that this would be a step too far.

 

Working party Phase I: Róisín O’Shea, Bill Holohan SC, Dr Sinéad Conneely, Margaret Connors, Dr Chinwe Egbunike-Umegbolu along with contributions from the Steering Group.