This sample Mediation Agreement is for demonstration purposes only.*
1. This mediation (“Agreement”) is entered into by and among ________________ (“the Parties”), and Kirkham Mediation, LLC (“the Mediator”) for purposes of arranging a Mediation between the Parties to endeavor to resolve their disputes.
2. The Mediation session has been scheduled for __________ and will be held at ______. Representatives of the Parties with full settlement authority, insurance representatives if appropriate, and lead counsel for each of the Parties will attend the Mediation session. No one else may attend the Mediation session without the advance written permission of all Parties and the consent of the Mediator.
3. No later than 10 days before the Mediation session, each of the Parties will submit mediation statements. The Parties are required to submit their statements to the Mediator and exchange with the other Parties. Statements shall not exceed 25 double-spaced pages, and should include information the Parties believe will facilitate settlement. In addition, at the same time, if either or both Parties wish to do so, they may submit a confidential statement to the Mediator only, which shall not exceed 10 double-spaced pages. The Parties are encouraged to include as much information as possible in the exchanged statements, and to include in the Mediator-only statement solely information that the Party does not wish to share with the adversary.
To provide the Mediator with information helpful to resolving the dispute, the statement(s) should include: names and titles of the individuals who will attend the Mediation.
- an introduction of what the case is about;
- pertinent background, procedural history, and present posture, including key rulings, if any;
- prior settlement discussions, if any, including the respective offers and demands;
- the current positions of the Parties;
- a summary of the strengths and weaknesses of each side’s case;
- future litigation cost estimates;
- nonmonetary options/components/issues;
- a discussion of the governing law;
- whether an insurance carrier may be involved, including if there are coverage issues;
- ideas on how the case might be settled;
4. It is agreed that, unless there is a final court order to the contrary, all statements made during the course of the Mediation process are privileged and confidential settlement discussions, are made without prejudice to any Party’s legal position, and are inadmissible for any purpose in any legal proceeding. No one may record any part of the mediation.
5. The Parties and counsel agree to make no attempt to compel the Mediator’s testimony, or to compel the Mediator to produce any documents provided by another Party to the Mediator. Without a final court order requiring such disclosure, the Mediator will not voluntarily disclose confidential information provided during the course of the Mediation, or testify on behalf of either party.
6. The Parties agree not to initiate any litigation or other proceedings against the Mediator, and agree to hold the Mediator harmless for any such litigation or proceedings. The Mediator is not a necessary or proper party in any judicial proceeding relating to the Mediation.
7. The Mediator is not providing legal services or advice to any Party to this Mediation. There is no attorney-client relationship between the Mediator and any of the Parties to this Agreement.
8. This Mediation is voluntary and non-binding. Any Party may terminate its participation for any reason by written notification to the other Parties and the Mediator.
9. The Mediator will review the written submissions of the Parties, conduct pre-session telephonic conferences with the Parties (both jointly and private, confidential conversations with one Party only), conduct the Mediation itself, and, if appropriate and with the permission of all Parties, undertake follow-up sessions or calls if the matter is not resolved at the Mediation.
10. The Mediator will charge the Parties for fees and expenses incurred in the Mediation process. The fees will reflect the time that the Mediator spends in initial communications, pre-mediation telephone conferences, reviewing Party submissions, the Mediation itself, and, per the request of the Parties, any follow-ups. The Mediator will bill in quarter of an hour increments. The Mediator will charge $100 per hour for travel time for mediations conducted outside the City of Flagstaff area. The Mediator will also charge for expenses incurred, including conference room and meal charges (unless provided by the Parties), transportation, and copying charges, all of which will be billed at cost.
11. The Parties have determined that they will share the Mediator/Mediation fees and expense in the following manner:_________.
12. The Parties will make an advance payment of $1,500 (apportioned between them as they determine), at least 25 days before the Mediation; any advance fees not used will be refunded once the Mediation has concluded.
13. For Mediation sessions canceled more than 25 days before a scheduled session, professional fees (less any Mediator time already incurred) will be refunded to the Parties. Any cancellation requested within 25 days of the scheduled session will result in a full day’s (based on an eight-hour day) fees charge for each day reserved for the Mediation, unless another mediation can be scheduled for the same date.
The Parties have determined that they will share the Mediator/Mediation fees and expense in the following manner:_________.
Mediator: _____________________________________ Date: __________
Party A: _____________________________________ Date: __________
Party B: _____________________________________ Date: __________