Who should record the outcome of a mediation and in what form?

The outcome of a mediation should always be recorded in writing by the parties in attendance at the mediation. Given that the mediation process is a voluntary process exercised within the confines of a Mediation Agreement into which both parties voluntarily entered, it is important that any final Settlement Agreement between the parties should be recorded in writing. The Mediator should ensure that the parties themselves are consenting on an informed basis to any mediated settlement. In order to achieve this objective, the parties should, between themselves, set out in writing the terms of any final Settlement Agreement. It is not the function of the Mediator to draft or settle the terms of the final Settlement Agreement. The normal practice is for one of the disputants to prepare the first draft of the document and to show the document to the other disputant for the purpose of ascertaining whether agreement can be reached on the terms of the mediated settlement.

A settlement agreed between the parties at the end of the mediation process should not only be set out in writing but should also be duly signed by both parties to indicate their agreement to the terms of the settlement. The Mediator should not advise on the terms of the settlement nor should the Mediator sign the final Settlement Agreement. It is not the role of the Mediator to advise the parties on the terms of the settlement because the decision on the final settlement terms can only be based on the voluntary decision of each of the parties in accordance with their own assessment of the situation and on the basis of any advice they may receive from their own respective legal representatives. It should be noted that the normal rules relating to the enforceability of contracts apply to such Settlement Agreements and the parties must rely upon their own legal advisors for specific advice on these points. The standard Mediation Agreements clearly require both parties to sign the final Settlement Agreement and on the basis of the rules governing the enforceability of contracts. Copies of the Settlement Agreement as duly signed should be exchanged between the parties before they leave the mediation. Given that the Mediator undertakes to destroy all the paperwork in his possession after conclusion of the mediation process, there is no point in any copy of the Settlement Agreement being passed to the Mediator because he will only be obliged to destroy the document immediately.

In many cases, the Settlement Agreement will contain a schedule in which the terms of any proposed “Consent Order” is attached. Obviously, the annexation of a draft Consent Order would only apply in cases where there are still outstanding legal proceedings before the Civil Courts. It is advisable that a draft Consent Order be attached to the Settlement Agreement in order that the terms of the Settlement Agreement can be immediately enforced by the terms of the draft Consent Order being placed before a Judge for the purpose of ensuring that the proceedings are formally settled before the Courts in cases where there is an extant dispute before the Courts. The Tomlin format is invariably preferred.

If it is not possible for the parties to agree upon a formal written Settlement Agreement at the conclusion of the mediation, nevertheless they can, if they so wish, prepare the “Heads of Agreement” and then both seek to sign the said Heads of Agreement in order to provide a framework for a final form of Settlement Agreement at a later date. Nevertheless, the Mediator will have no role to play in such a situation because the authority of the Mediator will terminate at the end of the mediation process in any event and the Mediator will destroy his papers. It is not for the Mediator to advise on the terms of any Heads of Agreement or on the terms of any Settlement Agreement. It is not for the Mediator to prepare any written documentation nor to record the outcome of the mediation. If no Settlement Agreement can be concluded and if no Heads of Agreement can be concluded, the Mediator merely terminates the mediation without any record being produced.