Mediation and Fee Agreement

We, the undersigned parties and their respective attorneys, if represented, (“Parties”) in the dispute known as,                                  hereby jointly engage Dave. Finch (“Mediator”) for the conduct of a mediation of this dispute and in the interest of achieving resolution of this dispute agree as follows:

1. PARTIES TO SEEK OWN LEGAL ADVICE:The Parties understand and agree that the Mediator will not provide the Parties with legal advice and nothing stated by the Mediator during the process of mediation shall be deemed legal advice or counsel to either party.If either party during the mediation deems it necessary to seek legal counsel, or other expert advice, the mediation may be interrupted and /or postponed for sufficient time for such purpose.

2. GOOD FAITH PARTICIPATION: During the process the parties have the right to reveal only so much information as they each deem advisable, provided the information disclosed is not false or misleading. Each party understands and agrees to participate in good faith, to respect the rights and dignity of each other in the process, and to observe appropriate customs and conventions of civility.

3. CONFIDENTIALITY: It is understood and agreed that all communications made in the course of the mediation process, including pre-mediation conferences with the mediator, shall be kept confidential, meaning that neither party, nor any person present during the mediation or who is party to any discussions or communications which are part of the mediation process shall reveal such information in any adjudicatory proceeding or to any person not a party to such discussions or communications, with reasonable exceptions such as a party’s close family members, business associates, persons directly affected and the like. However, an agreement resolving the dispute reached during the mediation, which has been reduced to writing and signed by the parties, or post-mediation agreed by them in writing to be binding, shall be binding upon the parties and shall not be inadmissible in evidence in any subsequent proceeding by reason of the rules of confidentiality which otherwise pertain to the mediation process.See Evidence Code § 1119, 1123, and related statutory provisions.     It is further understood and agreed that the mediator shall not be called as a witness in any later judicial or fact finding proceedings and that any party who serves a subpoena upon the mediator in any such proceedings shall be obligated, together with all collection costs and attorney fees, to compensate the mediator at his then regular hourly fee rate for all time required to respond to or comply with said subpoena, and in addition shall pay any and all expenses, including legal expenses, incurred by the mediator in connection therewith.

4. ROLE OF MEDIATOR: Mediation is a confidential process in which a neutral mediator facilitates communication and helps the Parties explore settlement alternatives in a non-coercive manner.The Parties understand and agree that the Mediator is not a judge and has no authority to force settlement on the Parties, or to enforce any agreement reached by the Parties.

 

5. PROCEDURE: Unless otherwise agreed in advance, the mediation will begin with the Parties together in an “open session” at which time the Mediator will listen to the positions stated by each side, and make any appropriate further inquiry and invite additional questions by each side to the other.Discussions will then be directed toward resolution potentials.At times, it may be useful for the Mediator to hold a separate session or “caucus” with each party in private.Private caucuses are used to gain a better understanding of a party’s concerns and to allow each party to discuss possible proposals and otherwise share confidential information with the Mediator. Through the mediation process, the Mediator facilitates communication, and the identification of common ground on which the Parties can formulate settlement options.

6. Fees of the mediator will be charged at the rate of $350 per hour, with a three hour minimum, and shared equally between the Parties, unless otherwise agreed, plus a facilities charge of $100 per side, all payable in advance.   Each attorney representing a party is responsible for the fees chargeable to that party.In the event of cancellation of a scheduled mediation session without advance notice to the mediator of at least 7 calendar days, there shall be a cancellation fee equal to 3 hours at the said hourly rate. The total of all actual fees for the mediation are to be paid at the conclusion of each session.

7. REQUIRED DISCLOSURES: (Here mediator describes required disclosures if any, or states that there are no known disclosures required of the mediator to be made.)

8. THE LAW REGARDING CONFIDENTIALITY: The proposed mediation process is to be also considered a settlement negotiation for the purpose of all state and federal rules protecting disclosures made during such processes from later discovery and/or use as evidence.Attached is a statement of pertinent Evidence Code Sections respecting mediation confidentiality.The undersigned acknowledge that they have read and understand these code sections as well as this agreement and its provisions regarding confidentiality.

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Mediator

EVIDENCE CODE SECTIONS REGARDING CONFIDENTIALITY

(And see Notes following)

§1115:DEFINITION: (a) ..Mediation means a process in which a neutral person or persons facilitate communication between disputants to assist them in reaching a mutually acceptable agreement….

§1119:MEDIATION CONFIDENTIALITY… (a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given. (b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given. (c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.

§1126:EFFECT OF END OF MEDIATION:Anything protected under this chapter before a mediation ends,shall remain inadmissible, protected from disclosure, and confidential to the same extent after the mediation ends.

NOTE:

The parties to the mediation and confidentiality agreement, including the mediator, may waive the confidentiality provisions, by agreement in writing signed by each and all of them.

PLEASE TAKE NOTICE ALSO, that the mediator will disregard the confidentiality agreement and the Evidence Code Sections quoted above may not apply in cases in which there are allegations of child abuse or threats of violent harm to another or other criminal activity or threat thereof.Also the Evidence Code Sections may be disregarded by the courts in certain criminal or juvenile court proceedings, and under certain conditions in other civil cases.