Mandatory Mediation And Arbitration Agreement Template for England and Wales

Yes, provided the clause is sufficiently certain. Following the Court of Appeal decision in Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019], a mediation clause must specify an ascertainable process to be enforceable. A clause requiring parties to 'attempt to resolve disputes through mediation before proceeding to arbitration' with a named provider and time limit is likely to be enforced as a condition precedent to litigation or arbitration.

A court or tribunal may stay proceedings until the mediation has been attempted. In litigation, if a party unreasonably refuses to engage with mediation, the court can take this into account when awarding costs under CPR Part 44. Persistent refusal to mediate has led courts to impose costs sanctions against the refusing party even where that party ultimately succeeded on the merits.

The Arbitration Act 1996 provides that a written arbitration agreement is valid and enforceable in England and Wales, and that courts must stay related legal proceedings in favour of arbitration if the dispute falls within the agreement's scope. The 1996 Act also governs the appointment of arbitrators, the conduct of the arbitration, interim relief, and the challenge and enforcement of awards.

In England and Wales, mandatory arbitration clauses in employment contracts are generally not effective to exclude Employment Tribunal jurisdiction. Employees retain the right to bring statutory claims (unfair dismissal, discrimination) in the Employment Tribunal regardless of any arbitration agreement. ACAS-arbitrated awards are a separate statutory process available by mutual consent only.

Med-arb is a process where mediation is attempted first, with any unresolved issues proceeding to binding arbitration. Arb-med reverses this, with arbitration commencing first and then pausing for mediation, after which the arbitrator issues an award. Both are permitted under English law, though the use of the same neutral as both mediator and arbitrator raises impartiality concerns and should be expressly agreed by both parties.

Yes. Mediation communications benefit from without-prejudice privilege under English common law, meaning they cannot be used as evidence in subsequent litigation. The mediation agreement should also include an express confidentiality clause. The retained Mediation Directive provides additional statutory confidentiality protections for cross-border mediations with EU-based parties.

Yes. Under the Arbitration Act 1996, awards can be challenged in the High Court on three limited grounds: serious irregularity in the proceedings (s68), a question of law arising from the award with permission (s69), and want of substantive jurisdiction (s67). The s69 appeal on a point of law can be excluded by agreement, and institutional rules (such as ICC or LCIA) commonly exclude such appeals to enhance finality.

From October 2024, the Civil Procedure Rules were amended to make MIAM (Mediation Information and Assessment Meeting) attendance mandatory for most civil claims in the County Court before proceedings are issued. Courts now have greater powers to order mediation mid-proceedings and to take refusal into account in costs decisions, reflecting the government's commitment to embedding ADR in the English civil justice system.