MEDIATION AND CONFIDENTIALITY AGREEMENT

1. RETENTION OF MEDIATION SERVICES

The parties hereby agree to utilize Bristol Mediation Services to mediate certain disputed issues.  All references to “mediator” apply to Bristol Mediation Services.  The mediation is scheduled for [____] at _____________a.m. at ________________________________.

2. MEDIATION; NATURE

The parties understand that mediation is a non-binding, informal process in which a mediator assists the parties in resolving a disputed issue or issues in an informal, consensual, collaborative manner.  Mediation is cooperative and does involve an assessment of blame or fault, but serves as a method for mutual resolution of conflicts. The mediator has no power to decide disputed issues for the parties or render a binding decision on the parties. The mediator’s objective is to facilitate the resolution of disputed issues by reaching an agreement that is mutually acceptable to both parties.  

3. NO REPRESENTATION; RIGHT TO CONSULT ATTORNEY

The parties understand and agree the mediator does not and shall not act as an attorney, advocate, fiduciary, therapist or representative of any party to mediation.  The mediator cannot and will not offer any legal advice to any party.  The mediator is an impartial intermediary who may not, and will not, act as an advocate for any party. In this regard, if the mediator is an attorney, no attorney-client relationship is created between any party and the mediator.

Each party has the right to consult or be represented by an attorney before, during and after the mediation, including consultation with an attorney prior to signing a settlement agreement.  

4. CONFIDENTIALITY

The parties agree that all oral and written discussions and communications in connection with the mediation, except for any final signed settlement agreement, are considered confidential information, shall not be disclosed to any third party and are not admissible in any subsequent noncriminal proceeding pursuant to California Evidence Code Sections 703.5, 1115 et seq. and relevant case law.  The parties agree that the mediator shall not be requested or required to testify in any such proceeding, and the parties shall also be prohibited from requesting or requiring the production of any records or documents made by the mediator.  Notwithstanding the foregoing, confidential information may be disclosed for the following reasons:

• The parties to the mediation sign a joint waiver of confidentiality;
• The mediator may disclose confidential information to protect against a threat of bodily harm to a party or individual;
• The mediator may disclose confidential information to defend himself/herself in any legal action by one or both of the parties, or to recover its fees in connection with this agreement; and
• As otherwise required by law.

5. TERMINATION

The mediator will attempt to assist the parties in resolving the disputed issues so long as both parties make a good faith effort to reach an agreement.  Parties must be willing and able to participate in the process.  The mediated agreement requires compromise, and the parties agree to attempt to be flexible and open to new possibilities for a resolution of the dispute. If the mediator, in his or her professional judgment, concludes that agreement is not possible or that continuation of the mediation process would harm or prejudice one or all of the parties, the mediator may withdraw and the mediation shall terminate.

The mediation may be terminated by a party for any reason at any time. No reason need be given, either to the other parties or to the mediator. A decision to terminate the mediation must be made to the mediator in writing. Mediation may not resume following notification of termination, unless expressly authorized in writing by all parties.

Upon the conclusion or termination of the mediation for any reason, the mediator agrees not to counsel either party or represent any party against any other party, in any court proceeding, adversary negotiation, or for any other reason involving a dispute between the parties. Each party and the mediator’s confidentiality obligations shall survive the conclusion or termination of the mediation.

6. REMEDIES

Since the parties may be disclosing privileged, sensitive, or confidential information in reliance upon the provisions of this agreement, any breach of this agreement would cause irreparable injury for which monetary damages may be inadequate. As a result, any party to this agreement may obtain an injunction to prevent disclosure of any such confidential information in violation of this agreement. Any party breaching this agreement shall be liable for and shall indemnify the non-breaching parties and the mediator for all costs, expenses, liabilities and fees, including attorneys' fees and costs, which may be incurred as a result of such breach.

7. HOLD HARMLESS

Mediation is not a legal proceeding leading to a decision that is binding or enforceable on a party.  It is a non-binding, voluntary process. Therefore, the result reached during mediation may differ greatly from the result that may be reached in court or by arbitration.  An agreement reached during mediation could be more or less favorable than a decision reached by a judge, jury or arbitrator.  Each party agrees to hold the mediator harmless from liability based upon a claim that the mediation process failed to provide an outcome that could have been obtained in court, by arbitration or by some other dispute resolution procedure.

By signing below, each party represents that the party has the authority to negotiate and settle this matter, and that the party has read fully, understands and agrees to be bound by the terms set forth in this Agreement to Mediate.  This Mediation and Confidentiality Agreement shall not be binding until it is accepted by Bristol Mediation Services below.

IT IS SO AGREED:

Party Name__________________________________            Party Name___________________________________

Party Signature_______________________________            Party Signature________________________________

Company/Firm________________________________           Company/Firm_________________________________

Title________________________________________           Title_________________________________________

Date ________________________________________         Date _________________________________________

Party Name__________________________________            Party Name___________________________________

Party Signature_______________________________            Party Signature________________________________

Company/Firm________________________________           Company/Firm_________________________________

Title________________________________________           Title_________________________________________

Date ________________________________________         Date _________________________________________

SO ACCEPTED:

Erica Bristol, Mediator

__________________________________________________________

Fees. [  ] $350.00 per hour (3 hour minimum)  [   ]  $2500 per day (8 hour day)  [   ] flat fee of $_________.  The parties understand and agree that a deposit in the amount of fifty percent (50%) of the total mediation fees must be paid to Bristol Mediation Services at least ten (10) days prior to the scheduled mediation date, with the balance to be paid prior to the commencement of the first session.  Any fees owed under this Agreement which are not paid within thirty (30) days of due date will be considered delinquent and a late payment charge of the lesser of one and one-half percent (1.5%) of the delinquent balance due or the maximum amount permissible by law will be assessed per month on the amounts that remain delinquent.  The parties agree to pay any and all costs, including reasonable attorney’s fees, incurred by Bristol Mediation Services in the collection of its fees.

Continuance and Cancellation Policy:  A party may cancel a scheduled mediation by sending an e-mail, fax or letter to Bristol Mediation Services.  Cancellations must be in writing; cancellations by phone will not be accepted.  Should a party cancel a scheduled mediation at least ten (10) business days prior to the scheduled date, the deposit shall be refunded to the appropriate party(ies) within ten (10) business days of the date of cancellation.  Should a party cancel a mediation less than ten (10) business days prior to the scheduled mediation date and the mediation is not rescheduled at the time of cancellation, the deposit shall be nonrefundable.