The “Standard” Agreement to Mediate

Mediators are often asked by parties or their counsel to send them a copy of their “standard Agreement to Mediate” for review. But is there such a document?

If by “standard” we mean some prescribed form followed by all mediators, the answer is no. Virtually every mediator has his or her own Agreement. Some are based on agreements provided in mediation training, while others are quite customized.

This article has its origin in a recent mediation. One of the three lawyers attending had clearly not read the Agreement to Mediate, although it had been sent to him weeks earlier. When I asked for a signed copy, the “sticky note” was still where his signature should have been.

His client, who had not received the Agreement ahead of time, started to read it. The lawyer, an experienced litigator, told him: “Just sign it. It is a standard agreement.”

Well, was it? I had never worked with that lawyer before, so he could not know what was in my Agreement. Later, a question arose about the confidentiality of caucus. The answer was in the Agreement. It was an embarrassing moment and may have given the other parties the impression that this party had not properly prepared. As it happened, the mediation did not settle. I cannot say that the lack of preparation contributed to that result, but it certainly did not help.

In over 25 years as a mediator, I can only remember once when counsel asked me to change my Agreement. The request was to strengthen the confidentiality provision, which I was happy to do. That experience, and the incident above, tell me that Agreements to Mediate are too often treated as routine documents when they deserve more attention.

In the absence of a governing statute such as Ontario’s Commercial Mediation Act, 2010, there is no comprehensive statutory regime governing mediation. The Agreement to Mediate therefore matters. It sets out the terms on which the mediation will be conducted, including the parties’ contractual obligations concerning matters such as confidentiality. As a matter of good practice, no mediation, whether under the Ontario Mandatory Mediation Program or otherwise, should take place without a signed Agreement to Mediate.

Members of ADR organizations may also be subject to professional requirements. Section 10 of the ADR Institute of Canada’s (ADRIC) Code of Conduct for Mediators requires the mediator and the parties to prepare and execute a mediation agreement setting out the terms and conditions of the mediator’s engagement. ADRIC’s National Mediation Rules incorporate the Code and also include a Standard Form Agreement to Mediate. While ADRIC provides this standard form, that does not mean in itself that there is a standard Agreement to Mediate. Many mediators use agreements that go considerably beyond the ADRIC form.

So, what should be in an Agreement to Mediate? I reviewed quite a few agreements and found significant variation. Most deal with the mediator’s role, confidentiality and caucus, attendance, fees, settlement and termination. The question is not how many terms can be included, but which ones are needed for the mediator’s practice and the particular mediation.

The agreements I reviewed range from two to six pages. Some try to cover almost every contingency. Others are deliberately shorter or incorporate terms and conditions available elsewhere, such as on a website. Length by itself tells us very little.

There are differences in how agreements are signed as well. Some mediators require everyone attending to sign the Agreement. Others are content to have counsel sign on their client’s behalf. I use a hybrid approach: counsel sign the Agreement to Mediate and everyone attending signs a separate confidentiality agreement.

Whatever approach is taken, the Agreement should be understandable. Reducing the font size to keep it to a particular number of pages is not the answer either. It just makes the document harder to read.

More importantly, the Agreement should reflect how you actually conduct your mediations. There is little value in carrying forward provisions from an old form if they no longer describe your practice.

Confidentiality deserves particular attention. A mediator should not guarantee absolute confidentiality. Its scope depends on settlement privilege, applicable legislation and the terms of the Agreement itself. The Agreement should not promise more than can actually be delivered.

The courts have considered some of these provisions. In Rogacki v. Belz, 2003 CanLII 12584 (ON CA), the Court of Appeal of Ontario dealt with confidentiality provisions in what was described as a “standard form mediation agreement.” The agreement created contractual obligations but was not a court order enforceable through contempt. In Provisions dealing with confidentiality and the mediator’s notes and recollections became important when a party later sought the mediator’s evidence in Rudd v. Trossacs Investments Inc., 2006 CanLII 7034 (ON SCDC).

Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, [2014] 1 S.C.R. 800, is particularly interesting in the context of this article. The Supreme Court of Canada described the mediation agreement as a “standard form contract provided by the mediator.” It nevertheless had to consider what the confidentiality provisions meant and whether they displaced an exception to settlement privilege. The Court confirmed that parties can contract for greater confidentiality than the common law provides, but clear language is required if they intend to displace a recognized exception.

The Supreme Court returned to these issues in Association de médiation familiale du Québec v. Bouvier, 2021 SCC 54, in the family mediation context, again considering the relationship between settlement privilege, confidentiality and the specific terms of the parties’ mediation contract.

These cases are useful reminders of the problems with the word “standard” and there are a number of others. Even so, cases tell us little about what should be in an Agreement or the overall impact of specific provisions. As a result, agreements must be reviewed from time to time. A provision that creates confusion in an actual mediation deserves another look. Court decisions help decide on particular provisions, but so does your experience in the field.

Exchanging agreements with colleagues for “peer review” can be very helpful. Some mediators are reluctant to do this because they are concerned that someone will “steal” their Agreement. But many of us put our agreements on our websites and routinely send them to parties and counsel, so I am not sure there is much to protect. A colleague may see something you have missed.

Familiarity creates its own problem. Counsel who regularly use the same mediator may assume they know what the Agreement says. If you make a significant change, let them know. But counsel still need to read it, as do their clients. Having worked with the mediator before is not a substitute. The mediator should also send the Agreement early enough that it can actually be reviewed before the mediation.

There may be such a thing as my standard Agreement to Mediate. There is no such thing as the standard Agreement to Mediate.