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.
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”).
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
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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
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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
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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.
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.
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
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
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IN WITNESS WHEREOF, Party 1 and Party 2 have hereby executed this Agreement as of the
date first above written.
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