MEDIATION AGREEMENT

This agreement for mediation (this Agreement) is made between your appointed mediator (the Mediator) and each of the parties (the Parties) as related to the dispute.

This Agreement is made on the day on which you have booked your consultation, whether a free consultation or a paid consultation, whether known as a formal consultation, free 15 minute consultation, intake and assessment or otherwise.

Mediation Process

The Mediation process referred to in this Agreement is a voluntary process by which the Parties, with the assistance of the Mediator, systematically isolate issues in dispute (the Dispute), develop options for the resolution of those issues, explore the usefulness of those options and consider alternatives with the aim of reaching an agreement that accommodates the interests and needs of the Parties and has the effect of resolving the Dispute or of agreeing on some of the issues.

Appointment of Mediator

The Parties appoint the Mediator to mediate the Dispute in accordance with the terms of this Agreement. The Mediator accepts this appointment.

Payment of Fees

The fee to be paid for the Mediation (Mediation Fee) is the amount set out in Schedule 2 and this shall be paid by the Parties in a manner directed by the Mediator with each Party paying an equal share of the fee, unless otherwise paid in advance by one party or as otherwise agreed in writing by the Mediator.

Refund of Fees

The Mediation Fee, Certification Fee and Preparation Fee are not refundable except, at the discretion of the Mediator.

The Mediation Fee is not refundable in the event the Mediation is terminated or concluded earlier than the Expected Duration.

The Mediation Fee is not refundable if the Mediation proceeds and no Terms of Settlement is signed by the Parties.

Other Fees

Other Fees shall be paid by the Parties in a manner directed by the Mediator:

• • The Mediator may charge the Preparation Hourly Fee set out in Schedule 2 and the Parties agree to pay such fee if charged.
  • If a venue needs to be hired for the Mediation, the Parties agree to pay this fee (Venue Costs).
  • In the event that the Mediation extends beyond the time set aside for its conduct as indicated in Schedule 2 and or in the confirmation email sent to the parties (the Expected Duration), the Parties agree to pay the Mediation Hourly Fee set out in Schedule 2 for any such extended time, subject to the Mediator’s right to waive any or all of the Mediation Hourly Fee.
  • If the Mediator needs to travel further than 100 kilometres from a CBD region of Sydney, Brisbane, Melbourne, Adelaide, Canberra, Perth, Hobart and Darwin to conduct the Mediation, the Parties agree to reimburse him for the costs of travel and any accommodation he may require (Travel Costs).
  • If the Mediator advises the parties that a Section 60 or Dispute Resolution Certificate is available to them, the Parties agree to pay the fee to the Mediator prior to the certificate being issued (Certification).
  • If payable, the Parties agree to pay an equal share each of the Preparation Hourly Fee, Venue Costs, documentation of agreements reached, the Mediation Hourly Fee and Travel Costs.

Role of the Mediator

The Mediator will:

• be neutral and impartial;
• not make decisions for either Party or impose a solution on the Parties;
• not bind the Parties by any comments, suggestions or statements made by the Mediator;
• not give legal, financial or other professional advice to either Party;
• not arbitrate between the Parties or make any rulings in relation to the issues in dispute between the Parties;
• not act as an advocate for either Party; and
• throughout the Mediation, determine when he may meet with the Parties together or separately.

Commitment to Mediation

Each Party agrees to co-operate with the Mediator and the other Party in the Mediation with a commitment to negotiate towards achieving a resolution of the dispute.

The Parties acknowledge each other’s right to be heard and agree to behave with courtesy and respect towards every person participating in the Mediation.

Once a date or dates have been set for the Mediation, any changes may only be made with the consent of the Mediator and both Parties.

Conflict of Interest

The Mediator must, prior to the commencement of the Mediation, disclose to the Parties to the best of their knowledge, any prior dealings with either of the Parties as well as any interest in the Dispute.

If, during the Mediation, the Mediator becomes aware of any circumstances that may affect his capacity to act impartially, they will, to the extent that they may do so, immediately inform the Parties of this situation.

Confidentiality

To the extent allowed by law, the Mediator and the Parties agree to keep confidential all information and documents concerning the Dispute which are disclosed during the course of the Mediation. Any disclosures, exchanges and all aspects of any communication occurring within the Mediation shall be ‘without prejudice’.

Subject to any limits imposed by law, the Parties and the Mediator agree that the following will be privileged and will not be disclosed 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 made in the course of attempting to resolve the Dispute, whether such proposal be made by a Party or by the Mediator;
• the willingness of a Party to consider or accept any such settlement proposal;
• any admission or concession made within the Mediation by a Party;
• any views expressed, suggestions made or exchanges passing (orally or documentary) between either of the Parties and the Mediator or between the Parties themselves;
• documents brought into existence for the purpose of the Mediation that have not been or are otherwise incapable of being discovered or subpoenaed for the purposes of trial.

Communication between the Mediator and the Parties

Any information disclosed by a Party to the Mediator in private is to be treated as confidential by the Mediator unless the Party who makes the disclosure authorises the Mediator to disclose the information.

The Mediator may communicate with the Parties or their representatives or both, separately or in conference, before the Mediation in order to agree on:

• the suitability of the matter for mediation;
• the collation, disclosure and presentation of documentation and other material for use in the Mediation;
• the setting of a time, date and venue for the Mediation;
• any other planning or administrative arrangements and considerations to enable the Mediation to take place.

Format of consultations and mediation conferences

The Mediator reserves the right to conduct the process of mediation in a manner as assessed by the Mediator, which includes any consultation (whether free or paid) and any mediation conference, which may include but not be limited to conducting the mediation process in person, by teleconference, by videoconference and by shuttle, or a combination thereof. Any format in which the service will be provided by the mediator, shall be advised to the parties in writing and the parties shall be bound by that format of service delivery and any relevant fees payable as a result of that service delivery shall be paid in full by the parties.

Translation Services

The Mediator will not provide any translation services to the parties to the dispute. Where parties require a translation service, they shall arrange that translation service themselves, at their cost and shall notify the Mediator in advance of the conference date of the translators name, email, telephone number and whether the translator is NAATI certified. Where a party has attended the mediation conference without a translator or with a person incapable and or not willing to translate for that party and the Mediator has assessed that the party would be unable to mediate due to a language barrier, then the mediation conference will be cancelled, where the Mediation Fee will be forfeited and any future mediation fees shall be payable by that party, unless agreed otherwise between the parties.

Authority to Settle

Before the Mediation commences, in order to come to the Mediation fully informed, each Party will seek any relevant professional advice in relation to any legal matters, including:

• the likely costs of the Dispute being taken to a court or tribunal; and
• the prospects of success if the Dispute were to be taken to a court or tribunal;
• financial matters;
• taxation matters, including the taxation implications of possible settlement scenarios;
• anything else that may affect that Party’s ability to negotiate and settle the Dispute.

Each Party shall attend the Mediation with full authority to negotiate and settle the Dispute and to enter into a binding agreement. This includes written authority to negotiate and settle on behalf of:

• • any fellow company or organisation directors;
  • any members of the Party’s family;
  • any other person with an interest in the outcome of the Mediation.

The term ‘full authority’ means authority to settle within any range and on any terms that may reasonably be anticipated.

If, during the Mediation, a Party needs to seek further advice or authority, the Mediator will facilitate this as far as is practicable.

Representation at Mediation

At the Mediation, only with the written consent of the Mediator, each Party may be accompanied by one ‘support’ person, including a professional advisor or lawyer where the other Party has consented to such a support person being present prior to the Mediator proving written consent.

If a Party objects to the other Party being accompanied at the Mediation by a support person, the objecting Party will lose the right to be accompanied by any support person(s).

Anyone attending the Mediation who is not a Party, may only attend after signing a third-party confidentiality agreement.

The Mediator may direct if and when any support person may speak at the Mediation

Settlement of the Dispute

Terms of Settlement may include an agreement met between the parties with respect to:

• parenting arrangements between the parties;
• property settlement;
• financial settlement;
• employment arrangements;
• any other purpose of which the mediation has been solely or jointly conducted for.

In the event that the Dispute is settled, a settlement agreement (Terms of Settlement) shall be drafted by the Parties, written down and signed by the Parties at the end of the Mediation.

If a person present at the Mediation, not being a Party, has appropriate authority to do so, that person may sign the Terms of Settlement on behalf of a relevant Party.

If the Dispute is settled, neither Party may leave the Mediation until the Terms of Settlement is signed by both of them, unless another person present at the Mediation is to sign on that Party’s behalf.

Enforcement of Terms of Settlement

Either Party will be at liberty to enforce the Terms of Settlement by judicial proceedings and for those purposes, any Party may call evidence of the Terms of Settlement.

Adjournment or Termination of Mediation

The Parties and the Mediator may mutually agree to an adjournment of the Mediation.

The Mediator may terminate his involvement in the Mediation if, after consultation with the Parties, the Mediator decides they are unable to further assist the Parties to achieve resolution of the Dispute.

Either Party may terminate the Mediation at any time after consultation with the Mediator.

If the Mediation is terminated without the drafting and signing of Terms of Settlement, any future mediation of the Dispute between the Parties will be a new mediation and not a continuation of the current Mediation.

The Mediation Fee remains payable in the event of an adjournment to or termination of the Mediation.

Exclusion of Liability and Indemnity

The Mediator will not be liable to either Party for any act or omission in the performance of the Mediator’s obligations under this Agreement unless the act or omission is fraudulent.

The Parties together and separately 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.

If a Party requires the Mediator to give evidence in a court or tribunal concerning anything said or done in the course of the Mediation, or to produce documents created for the purpose of or during the Mediation, that Party will:

• indemnify the Mediator for all costs and expenses incurred by the Mediator (including the Mediator’s legal costs and any legal costs the Mediator is ordered to pay to any other person) in connection with the appearance at the court or tribunal, the giving of evidence or the production of the documents; and
• pay the Mediator at the Hourly Rate specified in Schedule 2 for the time expended by the Mediator in connection with the appearance, the giving of evidence or the production of documents.

Schedule 2 – Mediation Costs

The Mediation Fee to be paid is $1,700.00 for a 4 hour conference and $2,000.00 for a 6 hour conference (inclusive of GST)

The Mediation Fee is calculated on the Expected Duration of the Mediation of up to 4 hours or up to 6 hours.

The Certification Fee to be paid under is $400.00 (inclusive of GST)

The Preparation Hourly Fee to be paid  is $440.00 (inclusive of GST)

The Mediation Hourly Fee to be paid to the Mediator is $440.00 (inclusive of GST)

The Hourly Rate to be paid by a Party  is $440.00 (inclusive of GST).

CONFIDENTIALITY AGREEMENT

This confidentiality agreement (this Agreement) is made between the appointed mediator (the Mediator) and each of the parties (the Parties) as to the dispute.

This Agreement is made on the day on which you have booked your consultation, whether a free consultation or a paid consultation, whether known as a formal consultation, free 15 minute consultation, intake and assessment or otherwise.

By engaging in the mediation process with us, you acknowledge and agree to the following:

• I will do my best to use the mediation conference as a genuine attempt to reach agreement.
• I understand that it is very important that we all feel we can talk freely in the conference and therefore:
• I will always keep what is said or done at the conference private and confidential.
• I will not disclose to anyone, anything said or done during the conference or any information I receive during the conference, with the following exceptions:
  • I may disclose the content of any agreement reached or proposal made with any person who is likely to be directly affected by that agreement or proposal if it takes effect.
  • I may disclose information which all parties at the conference agree may be disclosed.
  • I may disclose the written record of any agreement reached at the conference for the purposes of having orders made in accordance with that agreement.
• I will not disclose my engagement with Mediation for Families and or the Mediator or the outcome of a mediation conference:
  • to anyone other my legal representatives;
  • to anyone other than those closely related to my matter;
  • on any public forum, whether electronic or not;
  • on any social media platform;
  • on any search engine;
  • on any other electronically published medium.
• I agree that evidence of anything said or done at the mediation conference cannot be given in any legal or other proceedings at any time including evidence related to:
  • anything said or done while anyone at the conference is talking about the dispute
  • the willingness of anyone at the conference to consider any settlement proposal
  • any information prepared for the conference.
• I will not require the Family Dispute Resolution Practitioner (FDRP) or the mediator (the Mediator), any employee, contractor, representative or practicum student of ADR Services Pty Ltd to give evidence in any legal proceedings about anything concerning the conference. I agree that if the FDRP, mediator, an employee, contractor, representative or practicum student of ADR Services Pty Ltd receives a subpoena order of similar effect from me or any entity associated with me, I indemnify the Mediator for all costs and expenses incurred by the Mediator (including the Mediator’s legal costs and any legal costs the Mediator is ordered to pay to any other person) in connection with the appearance at the court or tribunal, the giving of evidence or the production of the documents and agree to pay the Mediator at the hourly rate as specified in Schedule 2 of the Mediation Agreement for the time expended by the Mediator in connection with the appearance, the giving of evidence or the production of documents.

I understand that in some situations, the FDRP/Mediator may be required or authorised to disclose things said or done, or information received during the conference, for reasons including but not restricted to the following:

• • to protect the life or health of any person;
  • to protect the property of any person, entity or body corporate;
  • to enable legal decisions to be made;
  • because the information relates to a lawyers or other professionals illegal act or improper conduct;
  • to obey a court order or other law;
  • to investigate a complaint;
  • because all the parties agree that disclosure should occur; and
  • because the party who provided the information agrees disclosure should occur.

I understand that information relating to the conference for family law related matters, can be provided for the purpose of research relevant to families as detailed in s.10H(5) of the Family Law Act 1975 (Cth). I understand that any such information will be used in such way that I will not be identified.

I understand that for family law matters, a qualified Family Dispute Resolution Practitioner (FDRP) or an employee or related entity of ADR Services Pty Ltd may attend the conferences for training purposes, and in that event the FDRP or employee who attends the conference must be a party to this Agreement.