Home

Staff Profile

Fees &
Retainers

Contact

Collaborative Negotiation

Mediation

Resources

FAQ

Sample Mediation Agreement

MEDIATION AGREEMENT

MEDIATION is a tool used to reach an agreement regarding important issues in a non-adversarial way. In mediation, participants have the opportunity to negotiate their own settlement, rather than have the court or a lawyer impose one on them. Successful mediation requires recognition that participants accommodate each other, and neither should win or lose. The process of mediation is mutual and participants should come out of it with a settlement that is acceptable to each participant and controlled by each participant.

THIS MEDIATION AGREEMENT is intended to define specific commitments and assurances made and given by the mediator to each participant and by each participant to the other participant and mediator. The specific provisions recited in this mediation agreement are not intended as an exclusive statement of all commitments and assurances which may be made and given before or during the course of mediation. In this mediation agreement we have specified certain responsibilities and other matters required by law.

MEDIATOR'S ROLE, RESPONSIBILITIES, and FEES

Mediator's Role to Help Participants Reach Agreement. The mediator's role is to help all participants communicate with each other, understand their options, and reach agreement. The mediator will then draft the agreement.

Mediator's Role to Provide Legal Formation. The mediator will use his mediation and legal skills to help participants identify areas of agreement and disagreement, and where legal problems may arise. When participants disagree, the mediator may point out how adversary attorneys or a court might look at the problem. However, participants are encouraged to consider alternative resolutions. The mediator will not act as a judge or decision maker. Further, the mediator will not be responsible for determining the value of any property, or the existence or amount of any debt.

Non-Representation of Any Participant by Mediator. The mediator does not represent any participant in mediation and therefore the mediator does not assume the role of protector as lawyers usually do.

Non-Participation of Mediator in Future Litigation. If participants later engage in litigation against each other, the mediator shall not work for any participant as a counselor or advocate in the litigation.

Withdrawal of Mediator. If participants insist on making an agreement where the mediator believes that one participant is taking advantage of another, or the result would be very unfair or unworkable, or where court approval is required but unlikely to be given, the mediator shall discuss these concerns with participants, and if still unsatisfied, the mediator may withdraw from the process and receive the agreed compensation for his mediation services. The mediator may also withdraw if he believes that the parties are unwilling to participate in the mediation process in a meaningful way and/or that the resolution of any, or all, issues is not possible.

Mediator's Fees. The Mediator's fees shall be calculated based upon a standard hourly rate of three hundred twenty five dollars ($325.00) per hour, billable in 1/10th hour increments, for all time incurred by mediator in connection with this matter, including but not limited to mediation sessions, document review, legal research, travel, conferring with third parties (such as experts, attorneys for the parties, or others) in connection with the matter, and drafting of correspondence/documents/agreements. Payment for mediation sessions shall be made in advance of such sessions. Payment for other fees shall be made by the earlier of a) the beginning of the next mediation session, or b) 10 days from the mailing of a statement setting forth such other fees.

PARTICIPANTS' ROLES AND RESPONSIBILITIES

Participants' Voluntary and Active Role. Participants take part in mediation voluntarily, desiring to reach a mutually beneficial agreement with the other participant(s). Participants will agree on what subjects to discuss and in what order to discuss them and will assume major responsibility for developing the agreement.

Participants' Right to Withdraw. A participant may withdraw from the mediation process at any time for any reason whatsoever.

Agreement to Maintain the Status Quo; Property, Debts. During the mediation period, participants agree to obtain the consent of all other participants before taking any unilateral action relating to the subject of the mediation which other participants might reasonably believe threatens their interests.

Agreement to Defer Litigation. Participants agree not to begin litigation and agree to defer action (including discovery) in any pending litigation between them during the mediation period. However, this does not limit participants' right to consult independent attorneys for advice.

Full Disclosure Agreement. Participants agree to disclose all facts, documents, etc., having any possible relevance to the mediation. Participants agree to disclose all property in which they have an interest, all obligations and their income, if relevant. Participants also agree to disclose any information that bears on the extent or value of property.

Non-Use of Power. Participants understand that mediation is not appropriate where one participant overpowers another, influencing the other against their will. Therefore, participants shall not threaten, intimidate, verbally or physically abuse, or repeatedly interrupt the other, at any time during the mediation process.

PROCEDURAL PROVISIONS

Oral Agreements Tentative and Non-Binding. All oral and unsigned agreements made during the process are tentative and not binding unless all participants agree otherwise.

NOTICE TO PARTICIPANTS

Mediation is an Alternative to Legal Proceeding. Participants are aware that a legal proceeding is an adversarial proceeding. Each participant is entitled to be individually represented by legal counsel, who will be concerned only with that participant's interest. If a person cannot afford to hire an attorney of his or her own choosing, the Court is empowered to order the other party to pay for the party's attorney's fees and costs. With this knowledge, participants agree to proceed at this time with mediation, rather than litigation.

Participants' Conflict of Interest and Responsibility to Stand Up for Themselves. Mediation participants often perceive their interests as conflicting with each other, so that resolution of any issue may favor one participant at the expense of another. Each participant must protect his or her own interests in mediation and should not make an agreement simply "to get it over." Mediation is not appropriate for all disputes and some people would be better served by hiring lawyers to protect their interests. By choosing mediation, each participant is trading away (or giving up) some of the benefits of adversarial representation, in exchange for (or in hopes of receiving) the alternative benefits of mediation.

Consulting Attorney and Experts Recommended for Each Participant. The mediator recommends that each participant consult with an independent attorney to get legal advice, discuss this Mediation Agreement, identify additional needed information, and review drafts of proposed settlement agreements before participants make any definite agreement involving substantial legal questions and consequences. If participants consult attorneys during the mediation period, they shall inform mediator and other participants that such consultations are taking place.

There may be complex issues concerning the value of property and/or tax and accounting problems involved in this matter. Participants may obtain their own independent tax, accounting, or appraisal advice at any time, and the mediator encourages them to do so.

Completeness and Accuracy of Information. Participants should participate in mediation only if confident that the other participant is basically trustworthy because the mediator cannot be responsible for verifying the completeness and accuracy of information provided by the participants. However, each participant is entitled to request and receive any possible independent confirmation of questioned assertions of fact or law.

MISCELLANEOUS

Allocation of Fee. The fees and costs of the mediator shall be shared equally by participants.

Mediator Confidentiality and Waiver of Confidentiality. The mediator will not reveal to non-participant third parties any of the information provided by the participants without the express verbal consent of both participants. However, the mediator may consult with colleagues regarding the mediation, provided the mediator does not disclose the participants' names or other identifying information.

Each party waives their right to confidentiality with the mediator and authorizes the mediator to share all communications with the other participant. Each participant agrees that the mediator may meet individually with the other participant, and understands that the mediator will disclose all information received.

Statements in Mediation Inadmissible in Court; Exceptions. Evidence Code Sections 1152 and 1152.5 shall apply to this mediation. These laws generally provide that communications made in the course of mediation are inadmissible as evidence in later litigation. However, if participants reach a binding agreement through mediation, and there is a later dispute about interpretation of the agreement, or allegations of mistake, undue influence, or fraud, such communications shall be admissible in evidence. Participants understand that information disclosed in mediation may be useful to the other participant(s) in litigation, even if not admitted into evidence. The following is the relevant text of Evidence Code Section 1152.5:

"(a) When persons agree to conduct and participate in a mediation for the purpose of compromising, settling or resolving a dispute in whole or in part:

(1) Except as otherwise provided in this section, evidence of anything said or of any admission made in the course of the mediation is not admissible in evidence or subject to discovery, and disclosure of this evidence shall not be compelled, in any civil action or proceeding in which, pursuant to law, testimony can be compelled to be given.

(2) Except as otherwise provided in this section, unless the document otherwise provides, no document prepared for the purpose of, or in the course of, or pursuant to, the mediation, or copy thereof, is admissible in evidence or subject to discovery, and disclosure of such document shall not be compelled, in any civil action, or proceeding in which, pursuant to law, testimony can be compelled to be given.

(3) When persons agree to conduct or participate in mediation for the sole purpose of compromising, settling, or resolving a dispute, in whole or in part, all communications, negotiations, or settlement discussions by and between participants or mediators in the mediation shall remain confidential.

(4) All or part of a communication or document which may be otherwise privileged or confidential may be disclosed if all parties who conduct or otherwise participate in mediation so consent.

(5) A written settlement agreement, or part thereof, is admissible to show fraud, duress, or illegality if relevant to an issue in dispute.

(6) Evidence otherwise admissible or subject to discovery outside of mediation shall not become inadmissible or protected from disclosure solely by reason of its introduction or use in mediation.

(b) This section does not apply where admissibility of the evidence is governed by Section 1818 or 3177 of the Family Code.

(c) Nothing in this section makes admissible evidence that is inadmissible under Section 1152 or any other statutory provision, including, but not limited to, the sections listed in subdivision (d). Nothing in this section limits the confidentiality provided pursuant to Section 65 of the Labor Code.

(d)If the testimony of a mediator is sought to be compelled in any action or proceeding as to anything said or any admission made in the course of the mediation that is inadmissible and not subject to disclosure under this section, the court shall award reasonable attorney's fees and costs to the mediator against the person or persons seeking that testimony.

(e) Paragraph (2) of subdivision (a) does not limit the effect of an agreement not to take a default in a pending civil action."

Mediator Not a Witness. Participants agree that the mediator will not be called as a witness by participants in any legal proceeding. If a participant attempts to call a mediator as a witness, the participant will pay for all resulting expenses and other costs incurred by the mediator, including the mediator's regular hourly fees and the mediator's attorney(s)' fees, and any costs.

I HAVE READ THE ABOVE AGREEMENT, I UNDERSTAND IT, AND I AGREE TO BE BOUND BY ITS TERMS AND TO FULFILL MY OBLIGATIONS UNDER IT.

- back to top -