Mediation. Session 4. The Mediated Settlement. Agreement

Июль 24, 2022

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Mediation. Session 4. The Mediated Settlement. Agreement

Содержание

2. Contents Drafting mediated settlement agreements (MSAs) Enforcing and challenging MSAs
3. 1. Drafting MSAs Example Parties A and B reach an agreement with the help of mediator
4. 1. Drafting MSAs Drafting In general, the parties’ legal counsel draft the MSA Where the parties
5. 1. Drafting MSAs Drafting See, e.g., CEDR Model Mediation Procedure Section 9 according to which “[t]he
6. 1. Drafting MSAs Drafting Sometimes only an agreement in principle is reached and it may not
7. 1. Drafting MSAs Contents Most MSAs will contain the following clauses: Identification of parties Settlement terms
8. 1. Drafting MSAs Identification of the parties Generally, only the parties to the dispute are parties
9. 1. Drafting MSAs Terms of settlement The terms of settlement may include: Obligations of the parties
10. 1. Drafting MSAs Legal/arbitral proceedings Where proceedings are pending, the parties must provide for the termination
11. 1. Drafting MSAs Legal/arbitral proceedings Where no proceedings are pending, the parties must exclude the possibility
12. 1. Drafting MSAs Enforcement of MSA (optional) This issue may be addressed In connection with the
13. 1. Drafting MSAs Confidentiality (optional) See, e.g., CEDR Model Settlement Agreement Art. 8 Note, however, that
14. 1. Drafting MSAs Applicable law/dispute resolution What are the options for the parties? What considerations should
15. 2. Enforcing and challenging MSAs Example Parties A and B reach a mediated settlement agreement whereby
16. 2. Enforcing and challenging MSAs Contract claims Where the MSA is not adopted in any other
17. 2. Enforcing and challenging MSAs Contract claims MSAs are thus enforced as contracts and their enforcement
18. 2. Enforcing and challenging MSAs Contract claims Where a party resists enforcement on contract law grounds,
19. 2. Enforcing and challenging MSAs Contract claims The enforcement of the MSA, however, does not typically
20. 2. Enforcing and challenging MSAs Other legal forms MSAs may be adopted in other forms: Court
21. 2. Enforcing and challenging MSAs Court orders In court-annexed mediation, a court may adopt the MSA
22. 2. Enforcing and challenging MSAs Court orders In France, for example: Courts will only verify the
23. 2. Enforcing and challenging MSAs Court orders A number of mediation laws provide for specific (judicial)
24. 2. Enforcing and challenging MSAs MSAs as arbitral awards Where arbitration proceedings are pending at the
25. 2. Enforcing and challenging MSAs MSAs as arbitral awards But what if no arbitration proceedings are
26. 2. Enforcing and challenging MSAs MSAs as arbitral awards Under some laws, the parties may establish
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Contents
Drafting mediated settlement agreements (MSAs)
Enforcing and challenging MSAs

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1. Drafting MSAs
Example
Parties A and B reach an agreement with

the help of mediator C. How will the MSA be drafted? By whom? What provisions should (or may) the MSA contain?

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1. Drafting MSAs
Drafting
In general, the parties’ legal counsel draft the

MSA
Where the parties are not represented by legal counsel, the mediator may draft the MSA

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1. Drafting MSAs
Drafting
See, e.g., CEDR Model Mediation Procedure Section 9

according to which “[t]he mediator will facilitate the drawing up of any settlement, though the drafting is normally done by the lawyers representing each of the parties”

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1. Drafting MSAs
Drafting
Sometimes only an agreement in principle is reached

and it may not be entirely clear whether and to what extent such an agreement is binding

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1. Drafting MSAs
Contents
Most MSAs will contain the following clauses:
Identification of

parties
Settlement terms
Effect on legal/arbitral proceedings
Enforcement
Confidentiality
Applicable law/dispute resolution

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1. Drafting MSAs
Identification of the parties
Generally, only the parties to

the dispute are parties to the MSA
See, e.g., CEDR Model Settlement Agreement note 3: “the mediator should not be a party or even a witness to the settlement agreement” (note, however, that under some laws (e.g. Hungary) an MSA is only valid if it has been signed by the mediator)

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1. Drafting MSAs
Terms of settlement
The terms of settlement may

include:
Obligations of the parties (e.g. pay amount X; deliver goods Y; etc.)
Contractual arrangements (e.g. termination/adaptation of existing contract; conclusion of a new contract or contracts)

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1. Drafting MSAs
Legal/arbitral proceedings
Where proceedings are pending, the parties must

provide for the termination of those proceedings, e.g.:
Withdrawal of the claim/case (unilateral, joint)
Court order adopting the MSA
Award by consent

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1. Drafting MSAs
Legal/arbitral proceedings
Where no proceedings are pending, the parties

must exclude the possibility for one of the parties to start proceedings
See, e.g., CEDR Model Settlement Agreement Art. 5 referring to the MSA as “full and final settlement of any causes of action whatsoever which the Parties… have against each other”

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1. Drafting MSAs
Enforcement of MSA (optional)
This issue may be addressed
In

connection with the termination of pending proceedings
In a separate clause (e.g. the parties agree to having the MSA subsequently adopted as a court order)

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1. Drafting MSAs
Confidentiality (optional)
See, e.g., CEDR Model Settlement Agreement Art.

8
Note, however, that confidentiality obligations may also apply as a matter of law or as a result of a provision contained in the mediation agreement

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1. Drafting MSAs
Applicable law/dispute resolution
What are the options for the

parties? What considerations should they take into account?

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2. Enforcing and challenging MSAs
Example
Parties A and B reach a

mediated settlement agreement whereby B agrees to pay USD 1 million to A to settle A’s breach of contract claim. The parties draft and sign a written MSA. If B fails to comply with its obligations, how can A enforce the MSA? How can B resist enforcement?

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2. Enforcing and challenging MSAs
Contract claims
Where the MSA is not

adopted in any other form, it will have the legal force of a contract

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2. Enforcing and challenging MSAs
Contract claims
MSAs are thus enforced as

contracts and their enforcement can be resisted on the basis of various contract law defenses such as, e.g.:
Mistake
Deceit
Duress
Lack of authority
Illegality

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2. Enforcing and challenging MSAs
Contract claims
Where a party resists enforcement

on contract law grounds, this frequently raises confidentiality issues, e.g.:
Can the mediator testify?
Can a particular mediation communication be produced as evidence?

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2. Enforcing and challenging MSAs
Contract claims
The enforcement of the MSA,

however, does not typically encounter any confidentiality-related obstacles
See, e.g., Model Law on International Commercial Conciliation Art. 10(3) which provides that mediation communications “may be disclosed or admitted in evidence… for the purposes of implementation or enforcement of a settlement agreement”

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2. Enforcing and challenging MSAs
Other legal forms
MSAs may be adopted

in other forms:
Court orders
Arbitral awards
Settlement deeds

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2. Enforcing and challenging MSAs
Court orders
In court-annexed mediation, a court

may adopt the MSA in the form of a court order or judgment. Two questions arise in this respect:
What review, if any, does the court perform of the MSA?
What means of recourse exist against the order or judgment?

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2. Enforcing and challenging MSAs
Court orders
In France, for example:
Courts will

only verify the existence of consent and the legality of the settlement
Means of recourse are extremely limited (revision for fraud)

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2. Enforcing and challenging MSAs
Court orders
A number of mediation laws

provide for specific (judicial) enforcement mechanisms for all MSAs
See, e.g., EU Directive Art. 6(1): “Member States shall ensure that it is possible for the parties, or for one of them with the explicit consent of the others, to request that the content of a written agreement resulting from mediation be made enforceable.”

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2. Enforcing and challenging MSAs
MSAs as arbitral awards
Where arbitration proceedings

are pending at the time when the parties reach an MSA, the MSA can be adopted as an award by consent by the arbitral tribunal

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2. Enforcing and challenging MSAs
MSAs as arbitral awards
But what if

no arbitration proceedings are pending? Or if there is no arbitration agreement?

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2. Enforcing and challenging MSAs
MSAs as arbitral awards
Under some laws,

the parties may establish an arbitration tribunal after the successful conclusion of the mediation in order to have the MSA adopted as a consent award (e.g. Hong Kong)

Mediation. Session 4. The Mediated Settlement. Agreement

Содержание

ContentsDrafting mediated settlement agreements (MSAs)Enforcing and challenging MSAs

1. Drafting MSAs ExampleParties A and B reach an agreement with

1. Drafting MSAs DraftingIn general, the parties’ legal counsel draft the

1. Drafting MSAs DraftingSee, e.g., CEDR Model Mediation Procedure Section 9

1. Drafting MSAs DraftingSometimes only an agreement in principle is reached

1. Drafting MSAs ContentsMost MSAs will contain the following clauses:Identification of

1. Drafting MSAs Identification of the partiesGenerally, only the parties to

1. Drafting MSAs Terms of settlement The terms of settlement may

1. Drafting MSAs Legal/arbitral proceedingsWhere proceedings are pending, the parties must

1. Drafting MSAs Legal/arbitral proceedingsWhere no proceedings are pending, the parties

1. Drafting MSAs Enforcement of MSA (optional)This issue may be addressedIn

1. Drafting MSAs Confidentiality (optional)See, e.g., CEDR Model Settlement Agreement Art.

1. Drafting MSAs Applicable law/dispute resolutionWhat are the options for the

2. Enforcing and challenging MSAs ExampleParties A and B reach a

2. Enforcing and challenging MSAs Contract claimsWhere the MSA is not

2. Enforcing and challenging MSAs Contract claimsMSAs are thus enforced as

2. Enforcing and challenging MSAs Contract claimsWhere a party resists enforcement

2. Enforcing and challenging MSAs Contract claimsThe enforcement of the MSA,

2. Enforcing and challenging MSAs Other legal formsMSAs may be adopted

2. Enforcing and challenging MSAs Court ordersIn court-annexed mediation, a court

2. Enforcing and challenging MSAs Court ordersIn France, for example:Courts will

2. Enforcing and challenging MSAs Court ordersA number of mediation laws

2. Enforcing and challenging MSAs MSAs as arbitral awardsWhere arbitration proceedings

2. Enforcing and challenging MSAs MSAs as arbitral awardsBut what if

2. Enforcing and challenging MSAs MSAs as arbitral awardsUnder some laws,

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