Download mediation and fee agreem

MEDIATION AND FEE AGREEMENT
THIS AGREEMENT made this
day of
, 201_, BETWEEN
( PARTY or PARTIES)
and ELINOR R. REINER (MEDIATOR):
1. Purpose of the Mediation: Mediation is a voluntary process designed to develop a
satisfactory and lasting agreement between or among Parties to a dispute and
thereby avoid either the need to commence or to continue litigation.
2. Role of Mediator: The Mediator is an impartial neutral who is engaged to assist
the parties in reaching an amicable settlement. The Mediator does not act in any
legal capacity by or on behalf of any Party and none of the Mediator’s interactions
with the Parties, either orally or in writing, creates an attorney/client relationship.
All communications from a Party to the Mediator will be confidential, and as
more particularly set forth below may not be disclosed by the Mediator to any
other person except with the consent of the Party.
3. Impartiality of the Mediator: The Mediator will remain absolutely impartial with
respect to her contacts with any party and will not advocate the interests of any
one Party over another. As a neutral, the Mediator may from time to time express
an opinion to a Party regarding the viability of any position taken in order to assist
in moving the matter to an amicable resolution which she believes is in the best
interests of the Parties.
4. Non-Disclosure and Mediator Confidentiality: All statements made during the
course of the mediation are privileged settlement discussions, are made without
prejudice to any Party's legal position, and are non-discoverable and inadmissible
for any purpose in an later legal or administrative proceeding. The Party or Parties
agree that the mediator will not be required to disclose to any third person any
information or statements made during the mediation process. The Mediator will
not voluntarily disclose any information she receives to any other person without
the consent of the person making the statement or providing the information. The
Mediator shall not be requested to testify in any court proceeding and it is
understood and agreed that the provisions of the California Rules of Evidence,
Sections 1115-1128 shall apply.
5. Participants: Participation in any mediation session is limited to the named Parties
and their attorneys. However, with consent of the Parties, other persons who may
be integral to the proceedings may attend and/or participate, such as financial
advisors, real estate appraisers, insurance adjusters and experts.
1
6. Full Disclosure: All Parties are expected to act in good faith and disclose fully all
relevant information, including but not limited to state and federal income tax
returns, pay stubs, brokerage and/or bank statements, property appraisals and any
other data pertinent to reaching an amicable resolution.
7. Separate Sessions: During the mediation sessions the Mediator may and often will
ask the Parties to meet separately with her in order to aid in the process of dispute
resolution. Any Party, or their attorney, may request a separate session with the
Mediator at any time. At the conclusion of any separate session, the Mediator will
ascertain whether there is consent to the Mediator sharing any information
disclosed to the Mediator with the other Party and will not disclose the same
without such consent.
8. Attorneys and Resource Persons: The Parties are encouraged to consult with an
attorney of their choosing and/or any resource persons respecting the subject
matter of the mediation and their legal rights and obligations. The Mediator may
discuss any pertinent issues with any attorney or resource person a Party selects
unless requested not to do so. If a Party chooses to attend mediation without an
attorney, the Mediator strongly encourages that Party to seek attorney review of
the terms of any final agreement.
9. Liability: There can be no guarantee that mediation will result, either in whole or
in part, in a settlement of the dispute. Should this occur, and the Parties determine
to proceed to litigation, arbitration or some other avenue of dispute resolution, the
Parties agree pursuant to paragraph 4 above, that they will not subpoena or
otherwise request that the Mediator offer testimony or produce any documents,
records or work product (such as private notes). Further, as more particularly set
forth in paragraph 12, below, the Parties agree to release and to hold the Mediator
harmless from any potential liability arising from any act or omission during the
mediation.
10. Withdrawal from Mediation: Any Party, or the Mediator, may upon reasonable
notice withdraw from further participation in the mediation at any time. However,
once a final settlement agreement is signed, all Parties to the mediation
understand and agree that it is binding upon the signatories and may be submitted
to a court with appropriate jurisdiction to be incorporated in any judgment or
order issuing out of such court.
11. Post-Session Communications: The Parties waive the requirements of California
Evidence Code Section 1125 as to the “end” of the mediation in order to protect
post-session communications, whether in person, by telephone, email, regular or
otherwise, under the mediation confidentiality privilege. The Parties agree that no
termination of mediation will be presumed without written notification by one
Party to the other Party or Parties and the Mediator that they consider the
mediation terminated.
2
12. Fees: The parties understand and agree that the Mediator, Elinor R. Reiner, shall
charge for her professional services in this matter a flat rate of $400.00 per hour,
the total cost of which shall be shared equally between or among the Parties
unless they otherwise agree. This fee shall be paid to the Mediator regardless of
whether a final agreement is reached as a result of the mediation. Bills for
mediation services shall be sent to the Parties or their attorneys as soon as
reasonably possible after the mediation is concluded and shall be due and payable
immediately upon receipt.
13. Limited Liability Release and Indemnification: The parties agree to release the
Mediator from any and all claims arising out of their failure to: (a) reach full or
partial agreement; or (b) decide to enter into any agreement of any sort. The
Mediator makes no representation that the Parties will reach an agreement on any
issues, disputes or controversies discussed during the mediation, either in whole
or in part, nor does the Mediator have any responsibility or liability concerning
the terms and conditions of any agreement reached by the Parties. Any Party or
representative of a Party who brings any claim, action or proceeding of any nature
against the Mediator, or who seeks to compel the Mediator to testify shall be
responsible to indemnify the Mediator for any costs, expenses, loss or damage
incurred, including without limitation attorneys fees and adjunct expenses
incurred in connection with such claim, action or proceeding.
14. Binding Agreement: Unless otherwise agreed in writing duly signed by the
Parties, their counsel and the Mediator, this Mediation and Fee Agreement is and
shall be fully binding and enforceable in any action in a court of appropriate
jurisdiction.
WHEREAS, THE PARTIES, THEIR COUNSEL AND THE MEDIATOR HAVE
SET THEIR HAND AND SEAL THIS
DAY OF
, 201__.
PARTICIPANTS:
COUNSEL:
___________________________________
________________________________
___________________________________
________________________________
___________________________________
________________________________
____________________________________
________________________________
MEDIATOR:
__________________
Judge Elinor R. Reiner
3