BurnessEdinburgh \ Glasgow Mediation: Legal Issues & Protected Conversations HE/FE Mediation Forum David Morgan & Morag Hutchison 9 November2012
What are we going to cover? • Types of “legal” mediation • Confidentiality of mediation • Agreement to Mediate • Settlement Agreement • Protected conversations
Types of Mediation ACAS Mediation Judicial Mediation Private Mediation
“Legal” Issues • Is the mediation confidential? • Mediator will keep everything confidential • What about the parties? What if mediation doesn’t succeed? Can information from mediation be used in tribunal claim?
“Legal” Issues • Mediation Agreement • Key clauses: • Confidentiality obligations • Mediator’s duties • Attendees • Fees • When settlement becomes binding • Circumstances in which mediation will end
“Legal” Issues • Settlement Agreement • Key clauses: • Identification of parties • Terms of settlement • Timelines for actions (e.g. Payment of sums/withdrawal of claims) • Confidentiality • Announcements • Disposal of existing claims • Signatures
Protected Conversations “So a boss and employee feel able to sit down together and have a frank conversation” (David Cameron)
BurnessEdinburgh \ Glasgow David.Morgan@burness.co.uk Morag Hutchison@burness.co.uk @DavidMorganLLB/@MoragHutchison/@BurnessEmpLaw