Mediation and Confidentiality Agreement

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MEDIATION AGREEMENT

Defined terms

In this document and its schedules and any annexures:

  1. “Consultation Phase” means a consultation for which a fee has been paid or is payable by a Client, that would occur prior to the Mediation Phase, that is undertaken for the purposes of the Mediator assessing the suitability of the matter for mediation.
  2. “Documentation Phase” means the drafting of a document that outlines terms upon which the parties agree upon within the conduct of a mediation for which a fee has been paid or is payable by a Client.
  3. “Full Authority’ means authority to settle within any range and on any terms that may reasonably be anticipated.
  4. “Mediator” means the mediator as nominated by Us that is suitably qualified to assist the parties in the resolution of the Dispute.
  5. “Mediation Phase” means the preparation of and conduct of a mediation for which a fee has been paid or is payable by a Client, that would occur prior to the Document Phase that is undertaken for the purposes of the Mediator assisting the parties to resolve the dispute.
  6. “Mediation Process” refers to Clause 6.
  7. “we“, “us” or the “Practice” means ADR Services Pty Ltd (ACN 641 173 828) trading as “Mediation for Families”
  8. “you” or the “Parties” means you and the other party to the dispute and “Client” means each of you.

Acceptance of these terms

This document constitutes an offer by the Mediator to provide the Services to you on the terms set out below. You will be taken to have accepted this offer if you:

  1. visit mediationforfamilies.com.au and make an enquiry (whether by telephone or otherwise);
  2. arrange a paid consultation with us;
  3. execute a copy of this agreement (whether electronically or otherwise);
  4. otherwise communicate your acceptance to the Mediator (whether in writing or verbally); or
  5. continue to proceed in the process in connection with the Services the Mediator offers following an enquiry made by you.

Appointment of Mediator

The Parties appoint the Mediator to mediate the Dispute in accordance with all the terms of this Agreement. The Mediator accepts this appointment on the basis of the Parties acceptance of the terms contained herein.

Our clients

This Agreement is made between the Mediator and each of the parties to the dispute (the Parties) as related to the dispute and both as considered as Clients. The Clients are the only entities to which the Mediator will owe their obligations.

The Mediator will not owe any obligations to any other entities.

Scope of the Services

The scope of the Services that the Mediator will provide under this agreement is as follows and the mediation process and its scope is divided into three discrete Phases:

  1. Consultation Phase, where the Mediator will assess the suitability of the Dispute for mediation and obtain information to assist in his function as mediator;
  2. Mediation Phase, where the Mediator will facilitate the Mediation Process; and
  3. Document Phase, where the Mediator will document any agreements reached between the parties during the Mediation Process.

Out-of-Scope Services

  1. Importantly, our engagement will not involve any Out-of-Scope Services. “Out-of-Scope Services” includes:
  2. any mediation services that do not fall wholly within the scope contained within; and
  3. any non-mediation services.

Changes to the scope

Changes to the scope of the Services can only be made by agreement in writing between the Mediator and the parties.

Mediation Process

  1. The Mediation process referred to in this Agreement is a voluntary process by which the Parties, with the assistance of the Mediator, undergo a Consultation Phase and Mediation Phase during which the Mediator will assist the parties to:
  2. systematically isolate issues in dispute (the Dispute);
  3. develop options for the resolution of those issues;
  4. explore the usefulness of those options;
  5. 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 and documenting the agreements met, being the Document Phase.

Role of the Mediator

The Mediator will:

  1. be neutral and impartial;
  2. not make decisions for either Party or impose a solution on the Parties;
  3. not bind the Parties by any comments, suggestions or statements made by the Mediator;
  4. not give legal, financial or other professional advice to either Party;
  5. not arbitrate between the Parties or make any rulings in relation to the issues in dispute between the Parties;
  6. not act as an advocate for either Party; and
  7. 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.

Each Party agrees, as provided by the Mediator, to review and complete (where requested) any:

  1. disclosure documentation; and
  2. preparation

Each Party agrees, as requested by the Mediator, to provide any:

  1. relevant documentation; and
  2. court orders;
  3. contracts and agreements
  4. anything else as reasonably requested by the Mediator.

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 first the consent of the Mediator and then the other Party.

Conflict of Interest

The Mediator will, prior to the commencement of the Mediation, disclose to the Parties to the best of their knowledge, any prior commercial or personal 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 permitted by law, the Mediator and the Parties agree to keep confidential all information and documents concerning the Dispute which are disclosed before, during or after 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:

  1. 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;
  2. the willingness of a Party to consider or accept any such settlement proposal;
  3. any admission or concession made within the Mediation by a Party;
  4. any views expressed, suggestions made or exchanges passing (orally or documentary) between either of the Parties and the Mediator or between the Parties themselves;
  5. 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.

The parties consent to the Mediator disclosing information that the Mediator may be required to disclose by law including disclosure of any things said or done, or information received before, during or after the Mediation, for reasons including but not restricted to the following:

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

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

Communication between the Mediator and the Parties

Any information disclosed by a Party to the Mediator in private will be treated as confidential by the Mediator, unless the Party who makes the disclosure consents to or 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:

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

During the mediation, the Mediator may meet and/or communicate orally and/or in writing as frequently as the Mediator considers appropriate with the parties or separately with any of the parties and need not disclose a meeting, discussion or communication to any other party.

Service Delivery Format

The Mediation will be conducted in a manner that the Mediator considers appropriate.

The Mediator reserves the right to conduct the process of mediation in a manner as assessed by the Mediator as appropriate, 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, or electronically (video-link and telephone) 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.

Electronic mediations

The Mediator conducts mediations in-person (at specified locations), and electronically via video link and telephone. An electronic mediation is a proper and formal mediation process. The only difference is that it is conducted via electronic means rather than in-person conference with all parties physically present in a meeting room.

For electronic mediations, the usual terms of the Mediation Agreement will apply, procedures, courtesies and formalities still apply and are expected to be complied with.

Your mediation may be conducted electronically because:

  1. you or the other party have made a request to do so: or
  2. the Mediator has assessed it to be conducted electronically; or
  3. for some other reason as reasonably necessary.

The Mediator has no obligation to notify the parties as to the reasoning that led to the assessment of an electronically conducted mediation.

Attendees at an electronic mediation are the parties to the dispute only, unless the Mediator has provided prior written consent and have notified both parties.

Electronic recording

  1. All parties are prohibited from electronically recording any:
  2. consultation (whether free or paid), conducted by phone call or video call or in person;
  3. phone calls or video calls or in person discussions with support staff;
  4. phone calls or video calls or in person discussions with the Mediator; and
  5. mediation conferences, whether in person, via phone, via video link or via shuttle.

Translation Services

The Mediator will not provide translation services to the parties to the dispute.

The parties agree that they shall arrange a translation service themselves, at their cost.

The parties agree to notify the Mediator at least 7 days in advance of the mediation date of:

    1. translators full name;
    2. email;
    3. telephone number; and
    4. whether the translator is NAATI certified.

The parties agree that where they attended the Mediation 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.

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:

  1. the likely costs of the Dispute being taken to a court or tribunal; and
  2. the prospects of success if the Dispute were to be taken to a court or tribunal;
  3. any financial matters;
  4. any taxation matters, including the taxation implications of possible settlement scenarios;
  5. 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.

Each Party shall have written authority to negotiate and settle on behalf of:

  1. any fellow company or organisation directors;
  2. any members of the Party’s family;
  3. any other person with an interest in the outcome of the Mediation.
  4. 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

Representation and support people during a Mediation is at the Mediators discretion only.

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

Support persons that have been approved by firstly the Mediator then the Parties, 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:

  1. parenting arrangements between the parties;
  2. property settlement;
  3. financial settlement;
  4. employment arrangements;
  5. 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 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:

    1. for in-person mediations, 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;
    2. for electronic mediations, each Party is to sign when received from the Mediator, being the same business day.

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.

Pricing

Basis of calculation

The Mediators Fees for the Services is calculated on an estimated per party basis as follows:

Consultation Phase:              A$200.00 to $400.00  (Intake Fee)

Mediation Phase:                 A$850.00 to $1,000.00 (Mediation Fee)

Document Phase:                 A$220.00 to $440.00 (Documentation Fee)

————————

Estimate:                          A$1,270 to $1,840.00 inc GST

Other Fees that may be payable under Schedule 1

  1. Intake Fee, Certification Fee, Preparation Hourly Fee, Mediation Hourly Fee and Hourly Rate may be payable;
  2. if a venue needs to be hired for the Mediation, the Parties agree to pay this fee (Venue Costs) if charged based on cost only (i.e. no markup);
  3. if the Mediator needs to travel in excess of 100 kilometres from a CBD 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) based on cost only (i.e. no markup);
  4. the Mediator may charge the Preparation Hourly Fee set out in Schedule 1 and the Parties agree to pay such fee if charged;
  5. in the event that the Mediation extends beyond the time set aside for its conduct as indicated in Schedule 1 or in the confirmation email sent to the parties (Expected Duration), the Parties agree to pay the Mediation Hourly Fee set out in Schedule 1 for any such extended time, subject to the Mediator’s right to waive any or all of the Mediation Hourly Fee;
  6. if the Mediator advises the parties that a Section 60 or Dispute Resolution Certificate is available to them, and a party requests the certificate, the requesting Party agrees to pay the fee to the Mediator prior to the certificate being issued (Certification Fee);
  7. if payable, the Parties agree to pay an equal share each of the Preparation Hourly Fee, Venue Costs, Document Fee, the Mediation Hourly Fee and Travel Costs.

Refund of Fees

Refunds of fees are as following:

  1. The Intake Fee, Mediation Fee, Hourly Mediation Fee, Certification Fee and Preparation Fee under Schedule 1, are not refundable.
  2. the Mediation Fee is not refundable if:
    1. the Mediation is terminated or concluded earlier than the Expected Duration;
    2. if the Mediation proceeds and no Terms of Settlement is signed by the Parties.
  3. the Documentation Fee is not refundable if:
    1. the Mediation proceeds and no Terms of Settlement is signed by the Parties;
    2. the document has been drafted by the Mediator, but not issued.
  4. the Certification Fee is not refundable if the certificate has been sent to one or both parties.

Payments

Payment terms

Payment is required as directed in writing by the Mediator.

Fees are payable:

  1. prior to the commencement of the Consultation Phase;
  2. prior to the commencement of the Mediation Phase;
  3. prior to any document being drafted by the Mediator;
  4. upon final completion of the Services; and
  5. upon termination of this agreement.

The Mediator may at any time:

  1. suspend their engagement until payment in full of any amounts that are payable.
  2. refuse to issue any documentation until payment in full of any amounts that are payable.
  3.  terminate their engagement where payment has not been made by a party by a specified date and time as nominated in writing by the Mediator.

Complaints Handling

The parties agree to be bound by the Complaints Handling Policy of ADR Services Pty Ltd located in our Service Charter at mediationforfamilies.com.au

Website Use

The parties agree to be bound by the Terms of Use located in our Service Charter on our website when using, accessing or engaging on mediationforfamilies.com.au

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 prior to or during the Mediation Phase when the Mediator gives verbal or written notice of termination to the parties.

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

If the Mediation is terminated without the drafting and subsequent 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

To the maximum extent permitted by law, the Mediator will not be liable to a party for any act or omission by the Mediator in the performance or purported performance of the Mediator’s obligations in the Mediation Process, except in the case of fraud. Where exclusion of liability is not permitted by law, the liability of the mediator will be limited to the costs paid to date of providing the mediation services.

The parties shall jointly and severally indemnify the Mediator against all claims, except in the case of fraud by the Mediator, arising out of or in any way referable to any act or omission by the Mediator in the performance or purported performance of the Mediator’s obligations in the Mediation Process.

No statements or comments, whether written or oral, made or used by the parties or their representatives or the Mediator within the Mediation shall be relied upon to found or maintain any action for defamation, libel, slander or any related complaint.

No party shall subpoena 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.

Where a party has subpoenaed the Mediator, then that Party will:

  1. indemnify the Mediator for all costs and expenses incurred by the Mediator (including the Mediator’s legal costs and any legal costs and other 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
  2. pay the Mediator at the Hourly Rate specified in Schedule 1 for the time expended by the Mediator in connection with the appearance, the giving of evidence or the production of documents.

Liability in relation to Third Party Service Providers

The Mediator will take reasonable care in providing information to any Third Party Service Providers that the parties have jointly sought to engage, but, to the maximum extent permitted by law, the Mediator takes no responsibility for their work or how they carry out service.

In suggesting or selecting any Third Party Service Providers, the Mediator will rely on information that we are given as to their qualifications and experience but take no responsibility for such selections and give no warranty as to the ability of any Third Party Service Providers to appropriately carry out their work or as to the quality of their services.

Schedule 1 – Mediation Costs

Fees listed are total costs (not specified as per party) and are GST inclusive.

The Intake Fee to be paid is between $200.00 to $400.00, depending on matter type (Consultation Phase);

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

The Mediation Fee to be paid is:

  • $1,700.00 for a 4 hour conference; and
  • $2,000.00 for a 6 hour conference.

The Document Fee to be paid is $220.00 per document (Document Phase);

The Certification Fee to be paid is $400.00;

The Preparation Hourly Fee to be paid is $440.00;

The Mediation Hourly Fee to be paid to the Mediator is $440.00;

The Hourly Rate to be paid by a Party is $440.00.

Schedule 2 – Dispute

Parenting AND / OR financial and property settlement

 

CONFIDENTIALITY AGREEMENT

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

Acceptance of these terms

This agreement outlines the confidentiality of the mediation process and you will be taken to have agreed to these terms if you:

  1. visit mediationforfamilies.com.au and make an enquiry (whether by telephone or otherwise);
  2. arrange a paid consultation with us;
  3. execute a copy of this agreement (whether electronically or otherwise);
  4. otherwise communicate your acceptance to the Mediator or Us (whether in writing or verbally); or
  5. continue to proceed in the Mediation Process in connection with the services the Mediator offers following an enquiry made by you.

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

  1. I will do my best to use the mediation conference as a genuine attempt to reach agreement;
  2. I understand that it is very important that we all feel we can talk freely in the conference and therefore;
  3. I will always keep what is said or done at the conference private and confidential;
  4. 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 court 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:

      1. to anyone other my legal representatives;
      2. to anyone other than those closely related to my matter;
      3. on any public forum, whether electronic or not;
      4. on any social media platform;
      5. on any search engine;
      6. 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:

    1. anything said or done while anyone at the conference is talking about the dispute;
    2. the willingness of anyone at the conference to consider any settlement proposal; and
    3. 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 and other 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 1 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:

    1. to protect the life or health of any person;
    2. to protect the property of any person, entity or body corporate;
    3. to enable legal decisions to be made;
    4. because the information relates to a lawyers or other professionals illegal act or improper conduct;
    5. to obey a court order or other law;
    6. to investigate a complaint;
    7. because all the parties agree that disclosure should occur; and
    8. 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.