Are They Required, and What Do They Usually Contain?
Mediation has become an increasingly important part of dispute resolution in England and Wales, encouraged both by the courts and by pre-action protocols. A common practical question for parties and mediators alike is whether a written mediation agreement is required, and if so, what its key terms should be.
Is a Written Mediation Agreement Required?
Strictly speaking, there is no statutory requirement under English law for parties to enter into a written mediation agreement before a mediation takes place. Mediation can, in theory, proceed on the basis of oral agreement.
However, in practice, it is customary and strongly advisable for a written mediation agreement to be signed by:
- The parties to the dispute (or their authorised representatives), and
- The mediator.
In most professional mediations, a written agreement is treated as standard practice. Mediators accredited by bodies such as the Civil Mediation Council (CMC) will almost always require one as a condition of acting.
The reasons are straightforward: a written mediation agreement provides clarity, manages risk, and helps ensure that the mediation process is legally robust.
Why Is a Written Agreement Important?
A mediation agreement serves several important functions:
- It confirms that participation is voluntary
- It establishes the confidential nature of the process
- It defines the mediator’s role and limits of responsibility
- It protects the mediator through appropriate exclusions of liability
- It helps prevent later disputes about what the parties agreed to at the outset
In addition, courts in England and Wales strongly support mediation. Clear documentation demonstrating that the process was properly structured can be important if issues later arise concerning costs, confidentiality, or admissibility of evidence.
Settlement Agreements Are Separate
It is important to distinguish between the mediation agreement and any settlement agreement reached at the end of the process. The mediation agreement governs the process itself, while the settlement agreement records whatever agreement may have been reached between the parties during the mediation and creates legally binding obligations in relation to the substance of the dispute.
Conclusion
While not legally mandatory, a written mediation agreement is customary, prudent, and widely regarded as essential in mediations conducted in England and Wales. It provides structure, protects all participants, and reinforces the integrity and confidentiality of the mediation process.
For parties serious about resolving disputes efficiently, commercially, and constructively, careful attention to the mediation agreement is an important first step. Lux Mediation offers experienced, neutral mediators and a well-established mediation framework tailored to the needs of each dispute.
If you are considering mediation or would like guidance on the mediation process, including the appropriate use of mediation agreements, you can contact Lux Mediation at mediation@lux-mediation.com to discuss your matter confidentially.