--- name: draft-mediation-agreement description: Use when drafting either a mediation agreement (submitting a dispute to mediation) or a settlement agreement (documenting terms reached after mediation or negotiation). Covers MENA and international institutional frameworks (DIAC, DIFC, ADGM, JAMS, CEDR, ICC ADR), confidentiality, without-prejudice protection, cost allocation, and the Singapore Convention on cross-border settlement enforcement. Triggers on "mediation agreement", "settlement agreement", "adr", "mediate", or "settle dispute" requests. license: MIT metadata: id: draft.mediation-agreement category: draft practice_area: litigation jurisdictions: [UAE, DIFC, ADGM, KSA, LB, EG, GCC, UK, EU, US] priority: P1 intent: [draft, adr, mediation, settlement agreement, dispute resolution] related: [draft-notice-of-arbitration, draft-litigation-complaint, review-dispute-resolution-clause, draft-boilerplate-clauses] source: Louis — HAQQ Legal AI (github.com/sboghossian/mini-claude-for-legal) version: "1.0" --- # Mediation Agreement / Settlement Agreement ## When to use this This skill covers two related but distinct documents: 1. **Mediation Agreement** — signed before mediation begins; submits the dispute to a mediator; establishes the procedural framework (institution, rules, confidentiality, costs, timeline) 2. **Settlement Agreement** — signed after mediation (or direct negotiation) succeeds; documents the agreed settlement terms; is a binding contract replacing or supplementing the original dispute Both documents are commonly used together: the mediation agreement governs the process; the settlement agreement records the outcome. ## Part I — Mediation Agreement ### When to draft this Draft a mediation agreement when: - Two parties wish to attempt mediated resolution before or instead of litigation/arbitration - A contract requires mediation as a pre-condition to arbitration or litigation - A court has ordered or recommended mediation ### Required inputs | Input | Why it matters | |-------|---------------| | Parties | Full identification of all disputing parties | | Dispute description | Brief neutral description of the dispute subject | | Mediator identity or institution | Named mediator or institutional rules to govern selection | | Confidentiality scope | What is covered; whether even the existence of the mediation is confidential | | Timeline | Maximum duration of the mediation process | | Cost allocation | How mediator fees and party costs are shared | | Governing law | Applicable to the mediation agreement itself | ### Structure of the mediation agreement 1. **Recitals** — Identify the parties and the dispute (brief description without prejudicing positions); state the mutual desire to attempt mediation before other proceedings 2. **Mediator selection and appointment** - Named individual mediator: name, credentials, contact - Institutional process: which institution's rules govern appointment (DIAC, DIFC Centre for Amicable Dispute Resolution, ADGM IDRC, JAMS, CEDR, ICC ADR, Singapore Mediation Centre) - Backup: if named mediator is unavailable or unacceptable, fallback appointment mechanism 3. **Rules governing the mediation** - Institutional rules (by reference) or agreed bespoke rules - Language of mediation - Seat / location of mediation sessions (or virtual) - Each party's right to be represented by counsel 4. **Confidentiality** - **Absolute confidentiality**: everything said, disclosed, produced, or communicated in the mediation is confidential; no party may introduce mediation communications as evidence in any subsequent proceeding - Scope: covers the mediator, parties, counsel, any experts or observers - Exceptions: a) court order requiring disclosure; b) with all parties' written consent - Consider: whether even the existence of the mediation and its outcome (if settlement not reached) are confidential 5. **Without-prejudice nature** - All statements, proposals, and offers made during mediation are without prejudice to the parties' legal rights and positions - Not admissible in any court or arbitral proceeding 6. **Timeline** - Mediation to commence within X days of signing - Sessions: typically 1-3 days; right to extend by agreement - If no settlement within X weeks, mediation concluded (parties free to proceed to arbitration/litigation) 7. **Costs** - Mediator's fees: split equally (most common) or otherwise - Institutional administration fees: split equally - Each party bears its own legal costs - Deposit and payment mechanics 8. **No binding settlement unless in writing** - Mediation produces no binding obligation unless and until the parties sign a written settlement agreement - Mediator's proposals are non-binding suggestions, not arbitral awards 9. **Carve-out for protective measures** - Either party may seek interim or emergency relief from a court or arbitral tribunal without prejudicing the mediation - Such proceedings do not constitute a breach of the mediation agreement 10. **Governing law and jurisdiction** - Law applicable to the mediation agreement itself - Jurisdiction for any disputes about the mediation agreement (not the underlying dispute) ### Institutional frameworks in MENA | Institution | Notes | |---|---| | **DIAC (Dubai International Arbitration Centre)** | Has mediation rules since 2022; can appoint mediators; also handles hybrid med-arb | | **DIFC Centre for Amicable Dispute Resolution** | Operates within DIFC Courts structure; can convert settlement agreement into court order | | **ADGM IDRC (International Dispute Resolution Centre)** | Mediation services; connected to ADGM Courts | | **SCCA (Saudi Center for Commercial Arbitration)** | Provides mediation services; KSA parties often prefer local institution | | **JAMS** | US-focused but operates internationally; widely used for cross-border disputes with US parties | | **CEDR (Centre for Effective Dispute Resolution)** | UK-headquartered; widely respected internationally; sophisticated mediator panel | | **ICC ADR** | International Chamber of Commerce ADR rules; global reach; preferred for complex international disputes | --- ## Part II — Settlement Agreement ### When to draft this Draft a settlement agreement when the parties have reached agreement — whether through mediation, direct negotiation, or during litigation — and wish to document, formalize, and make enforceable their agreed resolution. ### Required inputs | Input | Why it matters | |-------|---------------| | Parties | Full legal identification of all parties | | Background and dispute | Neutral description; brief recitals of the dispute context | | Settlement terms | Specific obligations — payment, conduct, asset transfer, etc. | | Release scope | Who releases whom; what is released; what is excluded | | Confidentiality requirements | Ongoing confidentiality obligations | | Tax allocation | Who bears any tax consequences of the settlement | | Governing law and enforcement mechanism | How is the settlement enforced if a party defaults | ### Structure of the settlement agreement 1. **Recitals** - Background: the parties, their commercial relationship, the genesis of the dispute - Dispute summary: what the dispute is about (without admitting fault) - Mutual desire to resolve: the parties wish to settle "to avoid the uncertainty and expense of further proceedings" 2. **Payment terms and non-monetary obligations** - Monetary settlement: amount, currency, payment schedule, account details - Non-monetary: transfer of assets, provision of services, referral of business, correction of records, public statement - Mechanics: exact payment dates; what triggers each obligation - Late payment: interest on late payments; right to re-open dispute if payment default persists beyond X days 3. **Release and discharge** - **Full and final mutual release**: each party releases the other from all claims, known and unknown, arising from the dispute description - Be precise about scope: is it limited to the specific dispute? Does it extend to all claims between the parties up to the date of the agreement? - Unknown claims release: in most jurisdictions, a general release covers unknown claims — state this expressly; California requires specific language for unknown claims (Civil Code § 1542 waiver) - **Carve-outs**: obligations under the settlement agreement itself are not released; obligations under surviving contracts not in dispute are not released - **Limitations on release in KSA**: Sharia-based settlements (sulh) are recognized; but releases purporting to waive Sharia rights may be challenged — verify with local counsel 4. **Confidentiality** - Both parties agree to keep the existence and terms of the settlement confidential - Exceptions: required disclosure to tax authorities, auditors, legal counsel, courts; disclosure required by law or regulation - Non-disparagement: neither party makes disparaging public statements about the other in connection with the settled dispute 5. **Dismissal of proceedings** - If litigation or arbitration is pending: parties agree to file for dismissal with prejudice (or equivalent) within X days of receiving the settlement payment - If DIFC Courts: consent order; if arbitration: consent award or withdrawal notice 6. **Tax allocation** - Specify how the settlement payment is to be treated for tax purposes (particularly relevant if the payment has an income, VAT, or withholding tax dimension) - Parties acknowledge they have obtained their own tax advice - Gross-up clause: if withholding tax is applicable, does the paying party gross up? 7. **Breach and remedies** - If either party fails to comply with settlement terms: the other party may re-open the underlying dispute and use the settlement agreement as evidence of the other's default - Alternatively: specific penalty for non-compliance (pre-agreed amount); applicable in civil-law jurisdictions 8. **Confidentiality of underlying proceedings** (if applicable) - If mediation was used, reference back to the mediation agreement's confidentiality provisions - Confirm that no mediation communications are admissible in any future proceedings 9. **Governing law and enforcement** - Law applicable to the settlement agreement - Forum for disputes about the settlement agreement 10. **Singapore Convention on International Settlement Agreements (2019)** The United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) allows cross-border enforcement of settlement agreements reached through mediation — analogous to how the New York Convention works for arbitral awards. - Applies where parties are from different contracting states - Signatory MENA states as of 2025: Saudi Arabia (signatory but check ratification status), UAE (signatory but check ratification status); LB not a signatory - To qualify: the agreement must have been reached through mediation; must state this expressly; mediator must have signed or institution must be identified - Include: express reference to mediation process; statement that it resulted from mediation; mediator's acknowledgment (or institutional certificate) if Singapore Convention enforcement is desired ## Common mistakes - Not stating "without prejudice" expressly in the mediation agreement — mediation communications may be disclosed in subsequent proceedings - Settling individual claims but not the underlying contract relationship (parties resume dealing and re-create the same dispute) - Inadequate definition of release scope — one party discovers an unknown claim later and argues it was not released - Omitting the carve-out for protective proceedings during mediation — a party seeking an urgent injunction from a court while mediation is pending should not breach the mediation agreement - Settlement agreement not converting to a consent order / consent award — paper settlement; not directly enforceable without re-litigating the settlement breach ## Related skills - [[draft-notice-of-arbitration]] - [[draft-litigation-complaint]] - [[review-dispute-resolution-clause]] - [[draft-boilerplate-clauses]]