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Agreement to Mediate Print

Agreement to Mediate

THIS AGREEMENT is made as of (day) (month) 200

BETWEEN THE FOLLOWING PARTIES (in this Agreement called "the parties")

Name of party


Name of party



Howard John ELLIOTT of 31 Waipori Street St Ives Chase NSW 2075 (called "the Mediator") trading as H.J Elliott & Associates Pty Ltd ABN 37 002 828 435.

Appointment of Mediator

1. The parties appoint the Mediator to mediate the dispute between them in accordance with the terms of this Agreement. The dispute is briefly described in Schedule 1 to this Agreement (the "Dispute"). The Mediator accepts the appointment to mediate the Dispute at such time(s) and place(s) as agreed to by the parties and the Mediator.

Role of the Mediator

2. The Mediator will conduct the Mediation in such manner as the Mediator determines.

3. The Mediator will assist the parties to attempt to resolve the dispute by helping them to:

  • systematically isolate the issues in dispute;
  • develop options for the resolution of these issues;
  • explore the usefulness of these options; and
  • achieve a resolution that is acceptable to them.

4. The Mediator may meet with the parties together or separately as the Mediator determines.

5. The Mediator will be neutral and impartial and will not:

  • give legal or other professional advice to any party;
  • impose a result on any party; or
  • make decisions for any party.

6. The Mediator will not accept an appointment or act for any party in relation to any proceedings concerning the Dispute. Neither party will take action to cause the Mediator to breach this Clause 6.

Conflicts of Interest

7. The Mediator must, prior to the commencement of the mediation, disclose to the parties to the best of the Mediator's knowledge any prior dealings with any of the parties as well as any interest in the Dispute.

8. If in the course of the mediation, the Mediator becomes aware of any circum­stances that might reasonably be considered to affect the Mediator's capacity to act impartially, the Mediator must immediately inform the parties of these circumstances. The parties will then decide whether the mediation will continue with that Mediator or with a new Mediator appointed by the parties.

Co-operation by the Parties

9. The parties must co-operate with the Mediator during the mediation and will comply with the reasonable requests and directions of the Mediator in relation to the conduct of the mediation and any preliminary steps.

Preliminary Conference

10. As part of the mediation, the Mediator may schedule a preliminary conference at a time and manner suitable to the parties and the Mediator. The purposes of the conference include establishing a timetable for exchange of information and the arrangements for the mediation. The conference may be held face-to-face or by telephone or by other means.

11. The parties and their representatives and advisers who are to attend the mediation session, must attend the preliminary conference with the Mediator.

Authority to Settle and Representation at the Mediation Session

12. The representative of any party must attend the mediation with authority to settle within any range that can reasonably be anticipated.

13. At the mediation, each party may have one or more other persons, including legally qualified persons, to assist, advise or support them, subject to any such person signing the Attachment to this Agreement and the relevant party ensuring that any such person observes Clauses 14 to 16. The number of support persons for a party will not exceed two without the agreement of the mediator.

Confidentiality of the Mediation and Privilege

14. Any information disclosed to a Mediator in private is to be treated as confidential by the Mediator unless the party making the disclosure states otherwise. Anything said to a party by a Mediator in private will not be disclosed by that party to the other party.

15. The parties and the Mediator will not disclose to anyone not involved in the mediation any information or document given to them during the mediation unless required by law to make such a disclosure or except for the purpose of obtaining professional advice or where the person is within that party's household. In the latter two exceptions, the party must advise the adviser or person that the information or document is confidential and will ensure that such adviser or person will observe this clause and Clause 16.

16. The parties and the Mediator agree that subject to Clauses 20 and 21, the following will be privileged and will not be disclosed in, or be the subject of, a subpoena to give evidence or to produce documents, in any proceedings in respect of the Dispute:

  • Any settlement proposal whether made by a party or the Mediator;
  • The willingness of a party to consider any such proposal;
  • Any statement made by a party or the Mediator during the mediation; or
  • Any information prepared for the mediation.

17. If a party produces a document for the purposes of the mediation that is, or otherwise would be, privileged from production or admission into evidence, that party will not be taken to have waived that privilege by producing the document.

Termination of the Mediation

18. A party may terminate the mediation at any time after consultation with the Mediator.

19. The Mediator may terminate the Mediator's involvement in the mediation if, after consultation with the parties, the Mediator feels unable to assist the parties to achieve resolution of the Dispute.

Settlement of the Dispute

20. If agreement is reached at the mediation, the terms of the agreement must be written down and signed by the parties before they leave the mediation.

Enforcement of the Settlement Agreement

21. Any party may enforce the terms of the settlement agreement by judicial proceedings.

22. For the purposes of Clause 21, any party may call evidence of the settlement agreement including evidence from the Mediator and any other person engaged in the mediation as to the meaning or intent of the settlement agreement, but not otherwise any of the matters listed in Clause 16. The party calling the Mediator to give evidence will pay to the Mediator pro­fessional fees calculated at the hourly rate stated in Schedule 2, for the time required for preparation and attendance to give evidence and will pay any costs associated therewith,

Exclusion of Liability and Indemnity

23. The Mediator will not be liable to a party for any act or omission in the performance of the Mediator's obligations under this agreement unless the act or omission is fraudulent.

24. The parties separately release and indemnify the Mediator against any claim for any act or omission in the performance of the Mediator's obligations under this agreement unless the act or omission is fraudulent.

The Cost of the Mediation

25. The parties separately will be liable to the Mediator for its share of the Mediator's fees and costs described in Schedule 2.

26. Unless the parties to the mediation agree otherwise, the fees and cost of the mediation will be borne by the parties in equal shares.

27. Each party will be liable to pay such fees and costs in the manner set forth in Schedule 2.

Schedule 1: Description of the Dispute

The Dispute is the subject of proceedings:

No: ______ of ______ in the _______________ Court

(Insert brief description of the Dispute)

Schedule 2: Costs of the Mediation

1. Mediator's Fees:

For the preliminary conference, reading material and all preparation time:

$ per hour

For the first 4 hours of the mediation session: $

For each hour beyond the first 4 hours: $ per hour up to a maximum daily fee of $

2. Room Hire, Travel & Other Expenses:

At cost.

3. Payment Arrangements

Each party will pay its share of fees and costs [by cheque at the conclusion of the mediation/within 14 days of the receipt of a tax invoice].


The parties and the Mediator have signed this Agreement to Mediate as follows:

Date: ______ (day)____________ (month) 20










In consideration of my being permitted to be involved in the mediation of the Dispute described in the Agreement to Mediate to which this Agreement is attached, I,



independently and separately agree with each of the parties and the Mediator that:

1. I will not disclose to anyone any information disclosed to, or received by, me during the mediation, unless required by law to make such a disclosure.

2. I will not disclose to anyone involved in the mediation any document received by me in relation to the mediation from a party to the mediation unless expressly authorised to do so by the party producing the document.

AGREED this (day) (month) 20











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