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This agreement can be used by parties that have already entered into a separate agreement whereby they agree to submit any dispute that may arise between them to neutral third-party mediation. Mediation is a popular form of alternative dispute resolution that forgoes the tedious, lengthy and costly court system in favor of cost efficient and time efficient mediation. This agreement can be used by small businesses or other individuals that have entered into a previous contract and want to submit any disputes that may arise to mediation.
Mediation Agreement This agreement can be used by parties that have already entered into a separate agreement whereby they agree to submit any dispute that may arise between them to neutral third-party mediation. Mediation is a popular form of alternative dispute resolution that forgoes the tedious, lengthy and costly court system in favor of cost efficient and time efficient mediation. This agreement can be used by small businesses or other individuals that have entered into a previous contract and want to submit any disputes that may arise to mediation. MEDIATION AGREEMENT THIS MEDIATION AGREEMENT (hereinafter referred to as the “Agreement”) is hereby made and entered into this __________ day of __________, _____ [Instructions: Insert the date of this agreement] by and between __________________________ [Instructions: Insert the name of the first party] with an address of _____________________________________ [Instructions: Insert the address of the first party] (hereinafter referred to as the “Party 1”) and ______________________________ [Instructions: Insert the name of the second party] with an address of __________________________ [Instructions: Insert the address of the second party] (hereinafter referred to as the “Party 2”). RECITALS WHEREAS, the Parties have entered into a separate agreement, (hereinafter referred to as the “Contract”) dated the __________ day of __________, _____ [Instructions: Insert the date of the original contract] and which is attached as Exhibit A and incorporated into this Agreement by this reference, this Mediation Agreement governs the resolution of any and all disputes between the Parties hereto. As specified herein, in the event of a dispute, the Parties will first engage in confidential negotiation in an attempt to resolve the dispute(s). If the confidential negotiation is unsuccessful then the Parties will engage in mediation. WHEREAS, Mediation is a structured problem solving process in which a neutral, impartial third person or persons assist the Parties to the dispute to reach a voluntary agreement to resolve the dispute; and WHEREAS, the Mediator facilitates the negotiations, but does not impose his or her views of what the agreement should be. NOW, THEREFORE, for and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the parties agree as follows: 1. CONFIDENTIAL NEGOTIATION Before a demand for Mediation can be made, the Parties hereby agree that they will first make a good-faith attempt to settle their differences by confidential negotiation. The Parties agree that these negotiations will be confidential, and will be treated as settlement negotiations as if they were occurring during the pendency of a judicial lawsuit pursuant to the applicable state or federal rules of evidence. The Party who alleges he, she, or it, has been or will be damaged shall request such negotiation, which may occur by telephone, video, or in-person, as may be agreed upon at the time (and if there is no agreement then by telephone) at least _________ [Instructions: Insert the number of days notice a party must give to have confidential negotiations e.g. fifteen (15)] days before making a Mediation demand. The negotiation must occur within _________ [Instructions: Insert the number of days within the negotiation demand that negotiations must occur, e.g. thirty (30)] days of the negotiation demand. In furtherance of the provisions of this section, all Parties hereby agree to make themselves © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 2 available on short notice and to negotiate promptly and in good faith, any matter any party may wish to negotiate. 2. CONDUCT OF MEDIATION If there is no settlement through confidential negotiation, then any remaining dispute shall be submitted to Mediation. The Mediation process is voluntary and nonbinding. Any Party may withdraw at any time by notifying the Mediator and the other Party or Parties in writing of its intent to withdraw. While participating in mediation, each Party agrees to make a good faith attempt to settle this dispute through mediation, to cooperate with the Mediator, and to be open, candid and complete in its efforts to resolve the dispute. 3. DESIGNATION OF MEDIATOR If the Parties cannot agree upon a Mediator within _________ [Instructions: Insert the number of days the parties have to mutually agree on a mediator, e.g. thirty (30)] calendar days of the giving of notice of a demand for Mediation, each Party shall submit the names of three Mediators. All such Mediators shall be (i) members of a reputable Mediation service (ii) persons actively involved in mediating private cases, and (iii) residents of the area where the Mediation is to occur, so as to minimize travel related expenses related to the Mediator. If the Parties cannot agree on a Mediator from that list, then the Parties shall alternately strike four names from the list, with the first Party and succeeding Parties to strike being determined by lot. After each Party has used two strikes, the Mediator shall be determined by entering the remaining names on the list in a drawing, and randomly selecting from those names, with the Party selecting being the Party who was not the first Party to strike a name. If a three (3) member Mediation panel is to be chosen, each party will select one (1) Mediator and the two (2) selected Mediators will choose the third Mediator, who will be the presiding Mediator on the three member panel. If there are more than two Parties to the Mediation then the process for choosing two (2) Mediators will be the same as above, and the two (2) selected Mediators will choose the third Mediator, who will be the presiding Mediator on the three member panel. 4. COMPENSATION OF MEDIATOR The Parties agree that the Mediator shall be compensated at a rate of $_________ [Instructions: Insert the hourly rate for the mediator] per hour for mediation services. Mediator shall be paid a retainer for _________ [Instructions: Insert the number of hours the retainer will cover] hours. The retainer shall be paid by the Parties who will each deposit $_________ [Instructions: Insert the amount each party will contribute toward the mediator’s retainer] with the Mediator as a retainer. The retainer will be deposited in the Mediator's escrow account and shall be withdrawn as earned. If the Mediator's escrow is an interest bearing account; the Parties agree that the Mediator shall be entitled to keep the interest. The Mediator will be compensated at the hourly rate for preparation time before and during the process, for time spent with the Parties or their attorneys in joint or separate sessions and contacts, and for drafting agreements or memoranda recording the agreements reached between the Parties. 5. MEDIATION PROCESS © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 3 The Mediator will control the procedural aspects of the Mediation. There will be no direct communication between the Parties or between their attorneys without the concurrence of the Mediator. The Mediator will be free to meet and communicate separately with each Party. The Mediator will decide when to hold joint or separate meetings with the Parties and shall, in consultation with the Parties, fix the time, place and agenda for each session. Efforts to reach a settlement will continue until: A. A settlement is reached; B. One of the Parties withdraws from the process; or C. The Mediator concludes and informs the Parties that further efforts would not be useful. 6. SUBMISSION OF INFORMATION Each Party will submit to the Mediator any material and information as it deems necessary to familiarize the Mediator with the dispute. Submissions may be made in writing and orally. The Mediator may request any Party to provide clarification and additional information. The Mediator may request each Party, separately or at a joint meeting, to present its case informally to the Mediator. The mediation process will be confidential. The Parties and the Mediator will not disclose information regarding the process to third Parties, including, but not limited to, settlement terms or, in case of impasse, the reason for the impasse, unless the Parties otherwise agree. The Mediator may not be called to testify as a witness, consultant or expert in any pending or future action relating to the subject matter of the mediation, including those between persons not Parties to the mediation. No Party may seek to introduce, for any purpose, evidence of a statement or of conduct during mediation at any trial or hearing that may later be held between the Parties. The Mediator will not transmit information given to him or her by any Party to another Party, if requested not to do so. 7. ATTORNEY REPRESENTATION Each Party may be represented by an attorney and other representatives, provided that at least one representative of each Party is authorized to negotiate a settlement of the dispute and, provided that that representative participates throughout the mediation process. If attorneys and principals are participating, the Mediator, after consultation with the participants, may conduct sessions with just the principals, just the attorneys, or both principals and attorneys present. 8. DISCLAIMER OF LEGAL SERVICE Mediator will not provide legal advice or legal representation for any Party. All Parties are expected and encouraged to retain their own legal counsel and to withhold final approval of an agreement until they are advised by their counsel. 9. EXPERT ASSISTANCE © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 4 Mediator may obtain assistance and independent expert advice at the expense of the Parties. Experts shall be bound and protected by the same rules of confidentiality as those which apply to the Mediator and the Parties. 10. COURT PROCEEDINGS All Parties will refrain from court proceedings during the Mediation process if they can do so without prejudicing their legal rights. If litigation is already pending between the Parties regarding the subject matter of the mediation, the Parties may agree to inform the court of the mediation process and request a stay of court proceedings. Insofar as possible, discovery will be suspended while mediation is ongoing. 11. FINAL PROPOSAL If the Parties should fail to develop mutually acceptable settlement terms, the Mediator may, before terminating the procedure, submit to the Parties a final settlement proposal which he or she considers an equitable solution to all Parties. The Parties will carefully consider any such proposal, and at the request of the Mediator will discuss the proposal with him or her. 12. SETTLEMENT AGREEMENT If a settlement is reached, the Parties, or the Mediator if requested by the Parties, will draft a written settlement document incorporating all settlement terms. This draft will be reviewed by the Parties and their attorneys, and, if acceptable, formally executed. 13. MODIFICATION Additional rules and procedures for the mediation may be negotiated and agreed upon by the Mediator and the Parties at any time during the mediation process. 14. NOTICES Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement. 15. COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. 16. COMPLIANCE WITH LAWS In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 5 both parties. IN WITNESS WHEREOF, Party 1 and Party 2 have hereby executed this Agreement as of the date first above written. PARTY 1 _________________________ PARTY 2 _________________________ © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 6 EXHIBIT A ORIGINAL CONTRACT © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 7
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