Annexure 3 Sample Agreements and Clauses

Sriram Panchu: Mediation Practice and Law - The Path to Successful Dispute Resolution, 2e 2015
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Annexure 3 Sample Agreements and Clauses

1. MODEL MEDIATION CLAUSE IN THE AGREEMENT BETWEEN THE PARTIES (NOT UNDER AN INSTITUTION)

(1) If any dispute arises in connection with this Agreement, the parties will first attempt to settle the dispute by
mediation before pursuing any other legal remedy.
(2) No party may commence any court proceedings/arbitration in relation to any dispute arising out of this
agreement (other than for interlocutory reliefs) until they have attempted to settle it by mediation and that
mediation has terminated.
(3) The above provision for mediation shall not prevent any of the parties from applying to any court or tribunal
of competent jurisdiction to protect or preserve their legal rights.
(4) The parties shall be represented in mediation by persons who have authority to settle the dispute.
(5) In the absence of an agreement to the contrary, the costs and expenses of the mediation shall be shared
equally between the parties.
(6) The party initiating the mediation shall give notice to the other party and the parties shall endeavour to
commence the mediation in two weeks.
(7) The period for mediation shall be 60 days, unless extended by the parties, or terminated by either party
earlier.
(8) The Parties agree to appoint (NAME) as the mediator, failing which (name).

or

The parties shall, when the dispute arises, appoint a mediator/s by consent, failing which each party
shall appoint a mediator.

(9) the mediation shall be governed by the provisions of part iii of the Arbitration and Conciliation Act, 1996.1
The term conciliation? shall be treated as synonymous with mediation?, and the term conciliator? shall be
synonymous with mediator?.

2. MODEL MEDIATION CLAUSES BETWEEN THE PARTIES WHERE THE MEDIATION IS TO BE DONE UNDER
THE RULES OF AN INSTITUTION OF MEDIATION

(1) If any dispute arises in connection with this Agreement, the parties will first attempt to settle the dispute by
mediation before pursuing any other legal remedy.
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(2) No party may commence any court proceedings/arbitration in relation to any dispute arising out of this
agreement (other than for interlocutory reliefs) until they have attempted to settle it by mediation and that
mediation has terminated.
(3) The above provision for mediation shall not prevent any of the parties from applying to any court or tribunal
of competent jurisdiction to protect or preserve their legal rights.
(4) The parties shall be represented in mediation by persons who have authority to settle the dispute.
(5) In the absence of an agreement to the contrary, the costs and expenses of the mediation shall be shared
equally between the parties.
(6) The party initiating the mediation shall give notice to the other party and the parties shall endeavour to
commence the mediation in two weeks.
(7) The period for mediation shall be 60 days, unless extended by the parties, or terminated by either party
earlier.
(8) The parties agree that the mediation shall be conducted as per the rules of the (name the institute). The
said rules shall govern all aspects including appointment of mediators and the procedure for the mediation.

Where such rules are silent, the provisions of part iii of the Arbitration and Conciliation Act, 1996 shall apply to the
mediation. The term conciliation? shall be treated as synonymous with mediation?, and the term conciliator? shall
be synonymous with mediator?.2

Optional Clause if Arbitration is to Follow Termination of Mediation

If the mediation is terminated by the mediator or both parties or either party, the parties will seek recourse to
arbitration. The Arbitration and Conciliation Act, 1996 shall apply to such arbitration. (if any institute is to administer
the arbitration, appropriate mention can be made).

3. PRELIMINARY AGREEMENT FOR MEDIATION AND APPOINTMENT OF MEDIATOR

(If felt necessary, this preliminary agreement may be entered into to determine how the)

This Agreement to Mediate (the Agreement?) is made on [Insert Date] between [Insert name and addresses of the
1st party] and [Insert name and addresses of the 2nd party] (collectively referred to as the Parties? and individually
as a Party?)

WHEREAS a dispute has arisen between the Parties with regard to _____________ (brief description of dispute).

AND WHEREAS the Parties have decided to attempt to resolve the dispute through mediation.

IT IS AGREED BETWEEN PARTIES AS FOLLOWS:

(1) For this purpose the parties agree that the mediator shall be appointed:

Option 1

a. Jointly by both parties within. days of signing this agreement.

b. Failing this each party shall appoint a mediator and the two mediators shall function jointly

Or

Option 2

a. The parties shall approach. (institution) for appointment of mediator.

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(2) On appointment of the mediator the parties and the mediator/ institute shall enter into the agreement to
mediate setting forth the modalities, terms and conditions of the mediation.

SIGNATURES OF PARTIES

4. AGREEMENT TO MEDIATE
This Agreement to Mediate (the Agreement?) is made on [Insert Date] between [Insert names and addresses of the
parties] (collectively referred to as the Parties? and individually as a Party?) and [Insert name and address of the
mediator] (the Mediator?)

WHEREAS a dispute has arisen between the Parties with regard to _____________ (brief description of dispute)

AND WHEREAS the Parties have appointed the Mediator/s to assist them in resolution of the dispute in accordance
with the terms and conditions contained herein.

IT IS AGREED BETWEEN PARTIES AS FOLLOWS:

I. Participation

(1) This mediation is being conducted with the purpose of resolving the dispute between the parties in a co-
operative manner.
(2) The parties agree to make a good faith attempt to resolve their dispute using mediation.
(3) Parties/their representatives with authority to settle the dispute will attend the mediation session and
parties may bring their advocates with them.

II. Arbitration and Conciliation Act, 1996

This mediation shall be considered as a Conciliation? and the Mediator/s as Conciliator/s? for the purposes of the
Arbitration and Conciliation Act, 1996 and the provisions of the Act shall govern the process.

III. Role of the mediator

(1) During the mediation the Mediator shall guide the procedural and administrative aspects of the mediation
process which may include requesting parties to submit written statements, fixing the time, date, and venue
for the mediation sessions. The Mediator will conduct the mediation and enforce compliance with the
ground rules which govern the mediation.
(2) The Mediators professional fees and expenses and the time frame within which payment in this regard
should be made are detailed in Annexure to this agreement and the Parties agree to share these costs
equally.
(3) None of the parties/their representatives will call the Mediator as a witness or expert in any litigation or
other proceedings whatsoever arising from, or in connection with, the matters in issue in the Mediation.
(4) Except in respect of deliberate wrongdoing, the Mediator shall not be liable to any party for any act or
omission in connection with the mediation.

IV. Confidentiality

(1) For the purposes of this agreement, Confidential Information? shall include all information arising out of
and relating to the mediation and any views, admissions or proposals for settlement (whether given orally,
in writing or otherwise).
(2) The Mediator and the parties/their representatives have an obligation to protect and maintain the
confidentiality of confidential information which shall also extend to the terms and conditions of the
settlement agreement except where disclosure is necessary for purposes of implementation and
enforcement.
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(3) All information disclosed by parties during the mediation process shall be without prejudice?, privileged and
inadmissible in any judicial or other proceedings, unless such information would otherwise be disclosable
therein.
(4) If a party discloses any information to the Mediator which he/she does not want communicated to the other
party/ies, he/she should request the Mediator to keep this confidential, in which event, the Mediator will not
disclose this to the other party/ies without prior consent.

V. Settlement agreement and termination

(1) The entire mediation process is voluntary and until parties reach settlement and sign a settlement
agreement it is non-binding in nature.
(2) If the parties reach settlement, they shall sign a settlement agreement to that effect and this agreement
shall have the same status as an arbitral award on agreed terms under the Arbitration and Conciliation Act,
1996.
(3) The mediation proceedings shall be terminated--
(a) By the signing of the settlement agreement by the parties on the date of the agreement; or
(b) By a written declaration of the mediator(s), after consultation with the parties, to the effect that further
efforts at mediation are no longer justified, on the date of the declaration; or
(c) By a written declaration of the parties addressed to the mediator(s) to the effect that the mediation
proceedings are terminated, on the date of the declaration; or
(d) By a written declaration of a party to the other party and the mediator(s) to the effect that the mediation
proceedings are terminated, on the date of the declaration.
(4) If the mediation is terminated before the settlement agreement is signed, the parties have the right to take
recourse to other legal proceedings as are open to them in law.

VI. Other proceedings and jurisdiction

(1) The parties agree that during the mediation, they shall not initiate, any arbitral or judicial proceedings in
respect of the dispute that is the subject- matter of the mediation except that a party may initiate arbitral or
judicial proceedings, where, such proceedings are necessary for preserving his/her rights.
(2) The Courts at .. (place) shall have exclusive jurisdiction to hear and determine all questions relating to this
agreement, mediation and any settlement agreement.
Signatures of Parties
Signature of Mediator/s

Note:

In the case of a International mediation between parties from different nationalities, the following clause is
suggested in place of VI (2)

This agreement, mediation and any settlement agreement shall be governed by the law of (country) and the Courts
at/of .. (place/country) shall have exclusive jurisdiction to hear and determine all questions that may arise out of
them..?

Where the applicable law is not Indian law, clause II above should be suitably amended.

Parties have the option of choosing to follow the rules of a named international body or can adopt the UNICTRAL
Model Law on International Commercial Conciliation, 2002 or the like.

5. SETTLEMENT AGREEMENT
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This SETTLEMENT AGREEMENT entered into at. (place) on (date) between .and .

WHEREAS

Disputes had arisen between the Parties hereto relating to.

The disputes were referred to mediation and the parties agreed that. would act as their Mediator.

Several meetings were held during the process of mediation and the parties have with the assistance of the
Mediator voluntarily arrived at a settlement resolving the disputes between them.

This mediation shall be governed by Part III of the ACA, and deemed to be considered as a Conciliation?, the
Mediator/s as Conciliator/s? and this agreement shall be a Settlement Agreement? as per the provisions of Part III
of the Arbitration and Conciliation Act, 1996.

The Parties have mutually arrived at a Settlement Agreement as follows.

NOW THIS DEED WITNESSETH AS FOLLOWS:

(1) The parties hereto confirm and declare that they have voluntarily and of their own free will arrived at this
Settlement Agreement through mediation.
(2) The Parties confirm that this Settlement Agreement correctly reflects the terms and conditions mutually
agreed to by and between the parties.
(3) The following settlement has been arrived at between the Parties hereto. (Here specify the terms of the
Agreement arrived at)
(4) The Parties state that they have no further claims or demands against each other in respect of the above
mentioned disputes and differences and that this is a full and final settlement of the same.

IN WITNESS WHEREOF the parties have signed this agreement at the place and on the date first above written.

PARTIES SIGNATURE
WITNESSES / ADVOCATES SIGNATURE
AUTHENTICATED BY MEDIATOR

1 This clause is suggested so as to avoid any confusion between the terms mediation and conciliation and to ensure that
the settlement agreement is enforceable.
2 This would apply to domestic mediation. Where it is an international mediation, the appropriate clause should be
framed.

End of Document