Mediation Agreement

A Mediation Agreement in the United States sets out the rights, duties and consideration binding the parties to it.

The mediation privilege established by the Uniform Mediation Act is central to effective US mediation practice. UMA Section 4 creates a privilege preventing parties, mediators, and all mediation participants from disclosing mediation communications in any court, administrative agency, or arbitral proceeding. This privilege is broader than settlement communication protections under Federal Rule of Evidence 408 — which covers only settlement offers and their surrounding statements — because the UMA privilege extends to all communications made in connection with mediation, including factual admissions, expert positions, and document productions made solely for mediation purposes. California, the largest US economy by GDP, has enacted its own mediation confidentiality provisions under California Evidence Code Sections 1115-1128, which are more protective in some respects than the UMA.

American Bar Association Model Standards of Conduct for Mediators — jointly adopted by the ABA, the Association for Conflict Resolution (ACR), and the American Arbitration Association (AAA) in 2005 — establish the ethical framework governing US mediators. Standard II requires mediator impartiality; Standard V requires mediator competence; Standard VI prohibits conflicts of interest unless all parties consent after full disclosure. The Mediation Agreement should address the mediator's ABA Model Standards compliance obligations and the disclosure process for any prior relationships with the parties.

US court-connected mediation operates under the Alternative Dispute Resolution Act of 1998 (28 U.S.C. §§ 651-658), which requires each federal district court to authorize at least one ADR process and offer litigants an opportunity to use ADR at an early stage of proceedings. Federal courts in California (Northern District Local Rule 16-8), New York (S.D.N.Y. Civil Case Management Plan), Texas (N.D. Tex. Misc. Order 62), and Florida (M.D. Fla. Local Rule 9.01) all maintain court-annexed mediation programs with credentialed mediator panels, fee schedules, and case management procedures. State court mandatory mediation programs add a further layer: Florida requires mediation before trial in all civil cases under Florida Statute Section 44.102; Texas requires it in all civil suits under Texas Civil Practice and Remedies Code Section 154.002; and California courts routinely order mediation under California Code of Civil Procedure Section 1775.3.

A United States Mediation Agreement is needed whenever two or more parties decide — voluntarily or pursuant to court order or contractual obligation — to attempt to resolve a dispute through mediation under applicable state law and the ABA Model Standards of Conduct for Mediators.

Business partnership and commercial contract disputes are among the most frequent mediation contexts in the United States. When partners in a Delaware LLC, Texas partnership, or California corporation disagree over profit distributions, management authority, breach of fiduciary duty, or contract performance, a Mediation Agreement establishes the procedural framework before the mediation session convenes — specifying the mediator's qualifications, the scope of issues to be mediated, cost allocation, and the confidentiality protocol consistent with the UMA or applicable state statute.

Employment disputes generate the largest volume of US mediations by case count. The Equal Employment Opportunity Commission (EEOC) operates the federal government's largest voluntary mediation program, resolving over 7,000 workplace discrimination charges annually under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e), the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621), and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101). State agencies — including the California Department of Fair Employment and Housing (DFEH), the New York State Division of Human Rights, and the Texas Workforce Commission Civil Rights Division — operate parallel mediation programs. A Mediation Agreement for employment disputes must address the scope of claims covered (including potential FLSA (29 U.S.C. § 201) wage-and-hour claims and WARN Act (29 U.S.C. § 2101) violations), confidentiality of personnel records produced in mediation, and the authority of the parties' representatives to bind their principals.

Real estate disputes — including construction defect claims under state contractor licensing laws, landlord-tenant disputes governed by state residential tenancy statutes, and commercial lease disagreements — routinely proceed to mediation before trial. Many commercial real estate contracts in California, New York, Texas, and Florida include mediation clauses specifying the American Arbitration Association (AAA) Commercial Mediation Procedures or JAMS (Judicial Arbitration and Mediation Services) Mediation Rules as the applicable procedural framework.

Healthcare and medical malpractice disputes in states with pre-suit mediation requirements — including Florida (Fla. Stat. § 766.108), Indiana (Ind. Code § 34-18-8-4), and Louisiana (La. Rev. Stat. § 40:1231.8) — require a Mediation Agreement that complies with the state's specific procedural requirements for medical review panels or pre-litigation mediation. The Mediation Agreement must address HIPAA (45 C.F.R. Parts 160, 164) privacy obligations for protected health information disclosed during the mediation session.

Family law mediations under state domestic relations statutes — including California Family Code Section 3170 (mandatory mediation for custody and visitation disputes), New York Domestic Relations Law Section 75-j, and Texas Family Code Section 153.0071 (collaborative law and mediation) — require a Mediation Agreement specifying the scope of family issues to be addressed (custody, support, property division), the mediator's qualifications under state family mediator credentialing requirements, and confidentiality protections consistent with the applicable state privilege statute.

A complete United States Mediation Agreement must include the following elements to comply with applicable state mediation statutes, the Uniform Mediation Act, and the ABA Model Standards of Conduct for Mediators. The forms-legal.com US Mediation Agreement template incorporates all mandatory elements in a structure consistent with AAA Commercial Mediation Procedures, JAMS Mediation Rules, and state court-annexed mediation program requirements.

Party identification must include the full legal names, addresses, and representative capacity of all parties — whether individuals, corporations, LLCs, partnerships, or government entities — and the names of any attorneys or authorized representatives attending the mediation session. For corporate parties, the representative's authority to bind the entity to a settlement must be confirmed — court-annexed mediation programs in California, Florida, Texas, and New York require a person with settlement authority to attend in person or by telephone.

Description of the dispute must define the subject matter and scope of the mediation with sufficient specificity to establish what issues the mediator is authorized to help, while remaining broad enough to allow the parties to explore creative solutions beyond the initial dispute framing. For court-ordered mediations, the case name, court, docket number, and any scheduling order deadlines must be referenced.

Mediator selection and qualifications must specify the agreed mediator by name and confirm the mediator's credentials — whether a Florida Supreme Court certified mediator, a California Dispute Resolution Programs Act (DRPA)-qualified mediator, a Texas Mediator Credentialing Association member, or an AAA- or JAMS-paneled mediator. The mediator's disclosure obligations under ABA Model Standard VI require advance disclosure of any prior relationship with either party, any financial interest in the outcome, and any prior knowledge of the subject matter.

Confidentiality provisions must confirm that all mediation communications are protected by the applicable state privilege statute — UMA Section 4 for UMA-adopting states, California Evidence Code Sections 1115-1128 for California disputes, Florida Statute Section 44.405 for Florida disputes — and are inadmissible in any subsequent court, arbitral, or administrative proceeding. The clause must address whether documents prepared exclusively for the mediation are protected, whether the mediator may be called as a witness in subsequent proceedings, and whether the confidentiality obligation survives the mediation.

Good faith participation clause must require each party and its representative to attend all scheduled mediation sessions, engage constructively with the mediator's process, and make genuine settlement proposals. Courts in California (Decker v. U.D. Registry, Inc. (1991) 229 Cal.App.3d 659), New York, and Florida have imposed sanctions and adverse costs awards on parties who failed to participate in court-ordered mediation in good faith.

Authority to settle provision must confirm that each party's representative attending the mediation has actual authority to negotiate and execute a binding settlement agreement without requiring additional corporate, board, or insurer approval during the session. Court-annexed mediation orders typically mandate this requirement explicitly.

Costs and fees section must specify the mediator's hourly or daily rate, the administrative fee charged by the mediation provider (AAA, JAMS, or the court), the cost-sharing arrangement between the parties (typically 50/50), and each party's responsibility for its own attorney's fees regardless of outcome. For court-annexed mediations in Florida and Texas, the applicable fee schedule set by the state Supreme Court must govern.

Post-mediation settlement formalization must specify how any settlement reached during mediation will be reduced to a written, signed agreement — whether as a term sheet signed at the conclusion of the mediation session, a full settlement agreement and release executed within a specified period, or a consent judgment or stipulated order filed with the court. The clause should address the binding effect of the term sheet before a formal agreement is executed, consistent with state contract formation law.

Governing law must specify the applicable state law governing the Mediation Agreement — California, New York, Texas, Florida, or another state — and confirm the applicable state mediation privilege statute. For disputes involving parties from multiple states, the choice of law provision should identify the state whose mediation privilege and enforceability rules govern. Parties should also consider a US Settlement Agreement to formalize any mediated resolution and a US Arbitration Agreement as the backstop dispute resolution mechanism if mediation does not produce a settlement.