ModelMediation
Procedure
2023 EDITION

Model Mediation Procedure

Table of Contents
1. What is Mediation?					

032. Referral to Mediation					

043. Choosing the Mediator					

054. Preparation for the Mediation					

065. Documentation					086. The Mediation Agreement					

097. The Mediation					108. Confidentiality in Relation to the Mediation		12

9. Conclusion of the Mediation					

1310. Complaints					14

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1. What is Mediation?
Mediation is...
Mediation is a flexible process conducted confidentially in whicha neutral person actively assists the parties in working towards anegotiated agreement of a dispute or difference, with the parties
in ultimate control of the decision to settle and the terms ofresolution.

The principal features of
mediation are that it:
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involves a highly trained and experienced
neutral third party to manage the process
and facilitate negotiations;is far quicker and cheaper than litigation or
arbitration;is without prejudice and confidential;
involves parties and representatives with
sufficient authority to settle;
is flexible, enabling the process to be
designed and managed by the mediator tosuit the parties, in consultation with them;puts the parties in control of the process andits outcomes (unlike litigation/arbitration);enables the parties to devise creative
solutions which are not possible in an
adjudicative process such as litigation or
arbitration, and which may benefit all theparties, particularly if there is the possibilityof a continuing relationship;
can be used in both domestic and crossborder disputes, two-party and multiparty disputes, and whether litigation or
arbitration has been commenced;
has a very high settlement rate.

CEDR‘s Model Mediation
Procedure
Many commercial and government contracts
now require parties to use mediation inaccordance with CEDR’s Model Mediation
Procedure. While mediation is essentially
flexible, the Model Procedure set out in thisdocument, taken with the CEDR ModelMediation Agreement, provide a clear androbust framework for the mediation process
to be set up and used. This procedure should
be read in conjunction with the CEDR Code of
Conduct for Third Party Neutrals.

3Model Mediation Procedure

Any contemplated or existing litigation or arbitrationin relation to the dispute may be started or continued
despite the mediation, unless the parties agree or a
Court orders otherwise. If settlement terms are notagreed through mediation, the parties can revert tolitigation or arbitration.

2. Referral to Mediation
Referral of a dispute to a mediator or to CEDR for
mediation may be as a result of:
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voluntary referral by all parties;
referral by one party who asks CEDR to secure the involvement of other parties
into a mediation;
responding to a Pre-action Protocol, Court Rules, a Court Order or arecommendation by a judge before trial or appeal;
Dispute Resolution clause in a commercial or government contract requiring
the use of mediation as a step in the parties’ agreed dispute resolution process;the provisions for use of mediation within an industry or public sector policy
framework.

Parties referring a case to CEDR are encouraged to include a copy of any appropriate
document or agreement as per above with the referral.

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3. Choosing the Mediator

The parties may choose their own
mediator directly or from any CEDR
panel of mediators, or may ask
CEDR to recommend mediatorsfrom whom they can choose one
to appoint as the mediator for a
dispute.
In some circumstances there may be acontractual or court requirement for theparties to request CEDR to nominate andappoint a mediator or where the parties failto agree on a choice of mediator.
CEDR will only nominate or appoint a
mediator who, in its view, possesses therelevant skills and experience to mediate
the dispute for the parties effectively, and
who will comply with the CEDR Code of
Conduct for Third Party Neutrals (‘theCode’). Any nominated mediator and allother parties to the mediation will be
required to confirm immediately to CEDR
if there is any matter which might preventthe nominated mediator from complying
with the Code in relation to the mediationof the dispute, such as a conflict of interest.
CEDR or the mediator will then notify all theparties of any such matter immediately it isdisclosed to them.
If required by any of the parties or the
Court, or under the published terms of any
CEDR dispute resolution scheme, CEDR will
appoint a mediator to be used in relation toa dispute, subject always to that mediator
not being prevented from complying
with the Code in relation to the mediationof that dispute. As part of CEDR’s role todevelop the field and its professionalism,
the parties may be asked by CEDR toapprove the appointment of an observer
mediator to attend a mediation at no costto the parties, provided that the observer
mediator also appropriately complies with
the Code in respect of the mediation.
The identity of any observer mediator
proposed to attend the mediation will bemade known in advance of the mediation
to the parties, who are free to object toany such nomination or decline any suchappointment.
All observers will be CEDR accredited
mediators and will have signed
confidentiality agreements . In appropriate
cases CEDR may recommend, or theparties agree, the use of co- mediators or
the appointment of a neutral expert toadvise the mediator on technical matters. If
co-mediators are chosen by the parties, allreferences to the mediator in a document
are taken to indicate the plural. CEDR
recommends however, that documents
related to the process be adapted to referto the mediator in the plural and that both
mediators be signatories to the Mediation
Agreement.

5Model Mediation Procedure

The circumstances in which a co- mediator
may be appropriate are:••

The number of parties or number ofattendees within a party is such that it
would be of benefit to have co-mediators
Where a specific technical expertise isrequired.

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The varying nationalities and cultural
backgrounds of the parties. This isseparate to the potential need for atranslator.
Personal preference of the parties.

4. Preparation for theMediation
CEDR or the mediator, when agreed or appointed, willassist in making the necessary arrangements for the
mediation as required or agreed by the parties or under
the terms of any scheme, including:
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preparing the agreement for mediation, incorporating any
agreed amendments and issuing it for execution by the parties;
compiling names and roles of attendees for the circulation of aparticipants’ form before the mediation takes place;facilitating agreement as to the date, start time, venue
arrangements (costs to be met by parties) when necessary and/or use of video conferencing technology;
facilitating exchange of case summaries and document bundles
between the parties and the mediator when requested;setting up any pre-mediation meetings agreed by the parties
and the mediator if requested. Meetings may be online,
telephone, in-person or hybrid, as the case requires.

The parties will:•agree the appointment of the mediator;•
agree with CEDR the date, start time and venue (including any
use of video conferencing for the mediation);•
execute the mediation agreement;•
pay CEDR’s fees and expenses as agreed under CEDR’s Terms
and Conditions of business (including the cost of the mediation
venue where necessary);•
each prepare and exchange a case summary for the mediationin respect of their approach to the dispute at the mediation

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and endeavour to agree with all other parties what
documents are needed for the mediation;
send to the mediator directly and/or by electronic
copy (as agreed), or to the location indicated by
CEDR, a copy of their case summary and a copy ofthe bundle of documents at the earliest convenience,usually no less than one week before the date set forthe mediation, making clear:whether case summaries have or have not yet been
exchanged;
whether or not and when CEDR or the mediator is toeffect exchange; andwhether all or any part of any case summary or
documentation is intended to be confidential for
CEDR and the mediator only. (Late submission of
documents might call into question that party’s goodfaith involvement in the mediation process, and havedetrimental effects on the prospects of success ofany mediation;)
notify the mediator of the names and roles of all
those attending the mediation on their behalf,
ensure that a lead negotiator with full authority tosettle the dispute attends the mediation to sign any
potential settlement agreement;
alternatively notify the mediator, CEDR and (unless very good reason exists to the contrary)
the other parties of any limitation on authority to settle, for instance lack of legal capacity,or the need for ministerial approval, court approval, or board ratification, in which casethe lead negotiator will need to have power to recommend acceptance of any settlement.
(Late disclosure of limited authority to settle can call into question that party’s good faith
involvement in the mediation process, and have detrimental effects on the prospects ofsuccess of any mediation.)

The mediator will:•
ensure that the Code is complied with in respect of the mediationof the dispute, reporting any conflict of interest or other relevant
matter, if any, immediately it emerges to CEDR and (subject toany question of confidentiality or privilege) the parties;•
attend any pre-mediation meetings on terms and agenda agreed
by the parties, or proposed by the mediator;•
read each case summary and document bundle submitted inadvance of the mediation by the parties;•
make contact with a representative of each of the parties before
the mediation to assist in preparation for the mediation anddiscuss issues arising.

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5. Documentation
Documentation intended to be treated as confidential by the mediator or
CEDR (such as a counsel’s opinion, an undisclosed expert report, a draft proof ofevidence or a confidential briefing for the mediator) must be clearly marked assuch, and will not be circulated further without express authority.

Documentation
One of the advantages of mediation is thatits success is not dependent on exhaustive
disclosure of documents. Bundles can usually
be relatively limited in size, containing only
key documents, and case summaries can bequite brief. Bundles can be jointly preparedby the parties. The parties can agree for asimultaneous exchange of case summaries if
it is appropriate to do so.
While documents brought into existence forthe purpose of the mediation, such as casesummaries, are clearly privileged from later

production in other proceedings, the fact thata document which is otherwise disclosable
in proceedings is produced for the first time
during the mediation does not normallyconfer privileged status on it. The parties musttake legal advice on such matters if they arise.
CEDR is a signatory to the Green Mediator
Pledge and would encourage documentation,
wherever possible, to be digital copies rather
than printed.

8Model Mediation Procedure

6. The Mediation Agreement

How it works
The mediation agreement provides the essential legal basis for the mediation. Its signatories (the parties to the dispute, the mediator and CEDR) all
agree by signing it that the mediation is to be conducted in a manner whichis consistent with both this CEDR Model Mediation Procedure and the Codeof conduct for Third Party Neutrals.
A mediation agreement will be sent to the parties as part of the preparation process
for the mediation, and any proposed amendments can then be discussed and inserted
if agreed by all.
The mediation agreement will normally be signed in advance by electronic signature or at
the beginning of the mediation day on behalf of each of the parties and the mediator, having
been pre-signed on behalf of CEDR. Upon appointment of the mediator by the parties (or by
CEDR) any pre-mediation contact between the parties, CEDR staff and CEDR mediator, willobserve the mediation agreement’s terms as to confidentiality, regardless of whether theagreement has already been signed or not.

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Model Mediation Procedure

7. The Mediation
Mediation can take place in person,
online or as a hybrid process.
The arrangements described below apply to in-person mediations
but broadly similar provisions apply for online mediation, such asarrangements for all parties to have (virtual) private rooms andprohibition on recording the mediation. Please see the guidancefrom CEDR the ‘Mediator’s Guide to Online Mediations‘ and the‘Client Guide to Online Mediations‘.

Set up
For in-person mediations it is normal for there to be at least three rooms so thateach party has a private room for confidential consultations on their own and withthe mediator during the mediation. There should also be a further room large
enough for all parties to meet with the mediator jointly.

The mediator will chair and takeresponsibility for determining theprocedure at the mediation, in
consultation with the parties. The
procedure is likely to comprise of aseries of private and joint meetings
including:•preliminary meetings with each of theparties when they arrive at the venue;••a joint meeting of all attending themediation, at which each of the parties
will normally be invited to make an oralpresentation;a mix of further private meetings andjoint meetings (which may involve
all or some of each party’s team), as
proposed by the mediator and agreed
by the parties.

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The Mediation Cont.
Professional advisers, particularly lawyers, can and usually do attend the mediation. Suchadvisers play an important role in the exchange of information and opinion on fact, evidence
and law; in supporting their clients (particularly individuals) in the negotiations; in advisingclients on the implications of settlement; and in drawing up the settlement agreement and any
consent order.
No verbatim recording or transcript should be made of the mediation by the parties or the
mediator in any form, but participants can make their own private notes which will not be
disclosable to anyone else, including in any subsequent litigation or arbitration.
Mediations can last beyond a normal working day and it is important that the key people
attending for each of the parties remain present or, at worst, available by telephone or videoconference for so long as the mediation continues. Any time constraints should be reported to
CEDR or the mediator as soon as known, as any unexpected departure can be detrimental tothe progress of the mediation and perceived as disrespectful by other parties.
Where any part of the mediation takes place using video conferencing software, the Host shallmean any and all of the following: the person allocated the role of “Host”, “Organiser” or similarterm by the video conferencing platform used; the person who is the lead participant; or the
person in control of the video conferencing platform.

No recording
should be
made.

Mediation canlast longer
than oneworking day.
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Model Mediation Procedure

8. Confidentiality in Relation to
the Mediation
The CEDR Model Mediation Agreement provides that what happens at themediation is to be treated as confidential by the parties, the mediator and
CEDR, including the terms of settlement, unless otherwise agreed by the parties
in writing. However, the fact that the mediation is to take place or has takenplace is not normally made confidential. If it is desired to make the fact that themediation is taking place confidential also, the agreement can be amended.

As the mediation is held under the auspices of CEDR, and CEDR is a party
to the mediation agreement, CEDR is also bound to keep confidential
information which the mediator may share with CEDR for the purposes ofcase reports or queries regarding professional conduct.
Apart from where the parties agree in writing to consent to disclosure of what would normallybe confidential, there may be rare circumstances in which the confidentiality of the mediation
process cannot be preserved, such as where:•••

the mediator or any party or theirrepresentative is required by law to makedisclosure;the mediator reasonably considers that
there is a serious risk of significant harmto the life or safety of any person if theinformation in question is not disclosed;orthe mediator reasonably considers that
there is a serious risk of being personallysubject to criminal proceedings unlessthe information in question is disclosed.

Such questions might arise in relation
to duties under the Proceeds ofCrime Act 2002 or related legislationor under any other legislation. Legal
representatives (who may themselves
be under a comparable duty of
disclosure in their own capacity) musttake full responsibility for advising
their clients of the implications of
disclosure in relation to any suchmatters at a mediation.

129. Conclusion of the Mediation
The mediation may end in a number of ways:
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by agreement by the parties and the mediatorby settlement of the dispute in whole or part, when all agreed matters must be written
down and signed by the parties to be binding;by an ‘in principle settlement’ of the dispute with an agreement to draft binding terms
after the mediation day;by the mediator advising the parties that a settlement, for the time being, at least, cannot
be reached;by one or more parties leaving the mediation before settlement is achieved;by an agreed adjournment for such time and on such terms as the parties and the
mediator agree;
by withdrawal of the mediator in accordance with the mandatory and optional
circumstances set out in the Code;by production of a document of summary or recommendations from a mediator, if
requested by all parties and agreed by the mediator.

The mediator will facilitate the drawing up of any settlement agreement, though thedrafting is normally done by the lawyers representing each of the parties.
Where proceedings have not been started in
respect of the dispute, the settlement agreement
will (if so intended and drafted) usually be a legallybinding agreement with its terms enforceable via
the Courts. Where proceedings have been issued
in relation to the dispute, it is normal for a Consent
Order to be agreed either at or after the mediationand later lodged with the relevant tribunal to end
the proceedings on the terms agreed. Parties
should agree who will be responsible for lodging theConsent Order.
Where the mediation day does not end in complete
settlement, the mediator may continue to workwith the parties thereafter to see whether further
progress might be possible.
Many disputes which do not settle at the mediation
day can settle later, usually as a result of what
occurred or was learned at the mediation.

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Model Mediation Procedure

Where the mediator agrees to stay in contact with the parties after a mediation, theprovisions of the mediation agreement continue to apply to those communications with
and/or including the mediator.
In the event that a settlement is not reached, the mediator if requested and if agreed
by each of the parties and the mediator, may produce a non-binding opinion or
recommendation in an effort to take the matter forward.
CEDR endeavours to make contact with all parties after every mediation to obtain
their feedback on both the process itself and, in particular, the mediator. Any feedback
obtained regarding the mediator will be given in full to the mediator as part of themediator’s continuing learning and development and CEDR’s quality assurance.

10. Complaints
How to Complain
Any formal complaint about CEDR or any mediator nominated by
CEDR should follow the procedure set out here:
CEDR Commercial Complaints Procedure14