Mediation Clauses

We encourage all businesses and organizations to consider the use of mediation as a first resort in dispute resolution. It is a cost-effective alternative which also helps businesses to preserve their commercial relationships while achieving a satisfactory outcome.

Best Practise for Crafting a Mediation Clause

A mediation clause, like any other provision in a contract, must be precise. That being said, it is preferable that its content remains summary in nature, so the details of the process are generally spelled out subsequently by the parties in a mediation protocol. While there is no hard and fast formula or “recipe” for drafting a mediation clause since the wording of the clause will depend on the circumstances and nature of the contract – certain elements are definitely worthy of inclusion, or at least consideration:

  1. Confidentiality of the process: While mediation is intrinsically confidential, care must nevertheless be taken to specify the confidentiality of the process in the mediation clause.
  2. Circumstances triggering the mediation process: The clause may indicate the circumstances in which the parties intend to resort to mediation. For example, it is possible to provide that “in the event of a dispute regarding the interpretation or application of the contract, the parties will submit the dispute to a mediator”.
  3. Minimum number of sessions: The parties may agree that the mediation process must be undertaken before any judicial or arbitration proceedings are instituted, and they may even specify that mediation is a precondition to instituting proceedings before any of those forums.
  4. Venue of sessions: The parties may also specify the venue where the mediation will take place. It is preferable to select a neutral location so as not to needlessly antagonize one of the parties and poison the relationship between them.
  5. Choice of mediator: The choice of a mediator may also be dealt with in the mediation clause. For example, the parties can provide that the mediator must have certain qualifications and in-depth knowledge of the sphere of activities to which the contract pertains. The parties can also decide to select their mediator based on the person’s experience or approach. It is also sound practice to specify the terms, conditions and technicalities of the mediator selection process.
  6. Mechanism for triggering the mediation process: It is also important to deal in the mediation clause with the mechanism whereby the mediation process will be triggered and how the mandate will be given to the mediator.
  7. Allocation of costs: In order to avoid any disagreement in this regard, the mediation clause should specify how the costs associated with the mediation are to be shared by the parties.

Sample Mediation Clauses

For Contractual or Commercial Disputes 

“Any dispute relating to this Agreement which cannot be resolved by negotiation between the parties within 7 days of either party giving notice to the other party that a dispute has arisen shall be submitted to mediation pursuant to the MTI  E. A Mediation center Mediation Rules and failing settlement of that dispute within the stipulated period, the dispute shall be submitted by any party for final resolution by the courts” .

“If a dispute arises out of or relates to this contract, or the alleged breach thereof, and if the dispute is not settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation within 30 days administered under MTI E. A Mediation Center rules before resorting to arbitration, litigation, or some other dispute resolution procedure. In the event that parties are unable to agree on a mediator, a mediator shall be appointed by E. A Mediation Center”

“The parties herein agree that they shall endeavor to resolve any dispute or claim arising in relation to their Agreement by means of good faith negotiations. If the dispute is not resolved within 14 days from the commencement of such negotiations, the parties shall endeavor to resolve the dispute through independent mediation. The parties will select a mutually acceptable mediator. The fees and expenses of the mediator and the mediation organization shall be borne equally by the parties. If the parties fail to reach an agreement which resolves all matters in the dispute within a further 30 days then either party shall be entitled to seek such legal remedies as may be appropriate”.

“Any dispute arising out of or in connection with this agreement must be submitted for mediation to the “MTI E. A Mediation center in accordance with the center’s Procedure in force for the time being. Either/any party may submit a request to mediate to MTI E. A Mediation center upon which the other party will be bound to participate in the mediation within Thereof. Every party to the mediation must be represented by senior manager or decision maker or its equivalent, with authority to negotiate and settle the dispute. Unless otherwise agreed by the parties, the Mediator(s) will be appointed by MTI E. A Mediation center. The mediation will take place in East Africa in English or Kiswahili language and the parties agree to be bound by any settlement agreement reached”.

For a Dispute or Disagreement in connection with an Employment Contract

“If any dispute, complaint or disagreement arises in connection with this employment contract, the parties will consider resolving it by mediation in accordance with the Company’s Mediation Policy before engaging in any adversarial procedure. Unless otherwise agreed between the parties, E. A mediation Center will nominate the mediator. Mediation is a confidential process and will be entered into both voluntarily and in good faith, and neither party, by entering into such a process will waive their respective statutory or contractual employment rights.”

For a Conflict or Disagreement during Employment

“If any conflict, disagreement or complaint arises between employees during employment, and the parties have not been able to solve it through existing non-adversarial procedures, the parties shall consider resolving it by mediation in accordance with the Company’s Mediation Policy in order to trigger mediation the matter should first be referred to manager in charge of mediation Unless otherwise agreed between the parties, MTI E.A mediation Center will nominate the mediator. Mediation is a confidential process and will be entered into voluntarily and in good faith, and neither party, by entering into such a process will waive their respective statutory or other legal rights. “