From "A Practical Guide To Family Mediation For The Divorce Lawyer, Mediator, and Client"
The parties to this agreement, _______ and _________ ("Clients") and _________________called "Mediator."
ROLE OF THE MEDIATOR
1. The Mediator is a neutral facilitator who will assist the Clients to reach their own settlement. The Clients have the ultimate responsibility for the consent of the agreement. The Mediator will not advise the clients to accept or reject an agreement. The goal of mediation is to obtain an agreement which is acceptable to both Clients. The Clients understand that the outcome of mediation may be different from the result obtained if the dispute had been resolved in court.
2. Adequate, timely information is essential for the Clients to make informed decisions about the wisdom and fairness of an agreement. Therefore, each Client shall produce all information necessary for the Mediator to understand the issues and for the Clients to negotiate knowledgeably. This includes providing each other and the Mediator with all information and documentation that usually would be available through the discovery process in a lawsuit. The Mediator may require either Client to supplement such information. If necessary information is not available, the Mediator may suspend the mediation until the information is available. The Clients recognize that the failure to make full disclosure may jeopardize the durability of the agreement and permit a court to set it aside.
3. The Mediator does not have authority to impose a settlement upon the Clients but will attempt to help them reach a satisfactory resolution of their dispute.
4. The Mediator may hold joint and separate meetings with the Clients as they deem necessary. The Mediator may discuss any statements made to the Mediator by one Client in a separate session with the other Clients unless the Client making the statement specifically requests that the information remain private.
5. Mediation sessions are private. Representatives of the Clients and other persons may attend only with the permission of the Clients and with the consent of the Mediator.
6. In order for mediation to work, open and honest communications are essential. Therefore, all written and oral communications of the Clients will be treated as privileged settlement discussions. As such, they shall not be admissible as evidence in court. Specifically, but without limiting the scope of this paragraph, the Clients agree that they will not rely on or introduce as evidence in any arbitral, judicial or other proceeding:
a. views expressed or suggestions made by another Client with respect to a possible settlement of the dispute;
b. admissions made by another Client in the course of the mediation proceedings;
c. proposals made or views expressed by the Mediator; or
d. the fact that another Client had or had not indicated willingness to accept a proposal for settlement made or presented by the Mediator.
7. The Mediator will not reveal anything discussed in mediation to anyone except the Clients without the permission of all Clients unless they are required to do so by law. The Mediator may be required by law to reveal information if they believe that a child is in need of protection or a person is a danger to self or to others.
8. At no time shall the Clients call the Mediator or anyone employed by the Mediator in any legal or administrative proceeding concerning this dispute. To the extent that they may have a right to call the Mediator or employees of the Mediator as witnesses, the Clients hereby waive this right.
9. The Clients shall not subpoena or demand the production of any records, notes, documents or work product of the Mediator in any legal or administrative proceeding concerning this dispute. To the extent that they may have a right to demand the production of this information, the Clients hereby waive this right.
10. If any Client causes a subpoena to be issued violating the terms of paragraphs 8 or 9, the responsible Client shall pay the Mediator's reasonable attorneys fees and costs incurred to resist the subpoena and enforce the privacy terms of this agreement.
11. The exception to these privacy provisions is that this agreement to mediate, and any written agreement made and signed by the Clients as a result of mediation may be used in any relevant proceeding, unless the Clients agree in writing not to do so.
MEDIATION, LAWYERS, AND COURT
12. The Mediator does not act as an attorney or a therapist. The mediator gives information, facilitates a dialogue and generates options to help the Clients resolve areas of disagreement. If requested by the Clients, the Mediator may prepare a settlement agreement necessary for the resolution of the dispute. If the settlement agreement requires any court documents or legal filings to carry out its terms, the Clients must arrange for preparation of the documents by their attorneys.
13. The Clients acknowledge that they have been advised by the Mediator that:
a. They should each have separate legal representation and should consult privately with their respective attorneys for independent, legal advice. This advice may be necessary prior to signing this mediation agreement, during the mediation process, and prior to signing any agreement for the resolution of the dispute;
b. Without review and advice by their own independent, legal counsel they may be giving up legal rights to which they are entitled, or running risks of which they are not aware; and
c. They should seek independent tax advice from their attorneys or other qualified tax advisors to assess any possible tax consequences related to the issues involved in the mediation.
14. The Clients recognize that there may be alternative objective and subjective standards to measure the fairness and effectiveness of a resolution to the issues in dispute. The goal of mediation is a lasting agreement that is acceptable to all participants. The outcome of mediation may be different from the result that could be obtained from a court resolution of the dispute.
15. All Clients intend to continue with mediation until reaching a settlement agreement. However, because mediation is a voluntary process any Client may withdraw from mediation at any time. All Clients reserve the option, if a satisfactory settlement is not reached, to pursue other available legal options.
16. The Mediator may end the mediation if any Client fails to make full disclosure of necessary information.
17. The Mediator may end the mediation if, in their judgment, further efforts will not contribute to a resolution of the dispute.
COST OF MEDIATION
18. The Clients agree to pay the cost of mediation services according to the terms of this Agreement to Mediate.
19. The hourly fee is based on both Clients combined gross annual income. If it is determined during mediation that Clients gross annual income is incorrect, the Mediator may adjust the hourly fee. Payments will be made at the time services are performed. The Mediator shall be compensated based upon the amount of time spent on the case. The rate of compensation is $______ per hour plus applicable tax. The Mediator's time includes all time in mediation sessions and all time spent outside mediation sessions on research, preparation, document drafting, and phone conferences.
20. All fees for additional sessions will be paid at the end of each session unless special arrangements have been made in advance.
ALL ACCOUNTS NOT PAID IN FULL EACH MONTH WILL BE ASSESSED LATE CHARGES OF 1.5% A MONTH.
21. The total cost of the mediation shall be shared by the Clients as follows:
_ Divided equally between the Clients.
Paid in full by
By the clients in these proportions
_____________ shall be the Mediator handling this case.
Signed on the day of , 19 .
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