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Mediation Procedures

Agreement to Mediate

Whenever parties have agreed to mediate in accordance with the United States Arbitration & Mediation (USA&M) Procedures, the following procedures apply. These procedures may be altered by agreement of the parties with the consent of USA&M.

Mediation is a voluntary process where the parties to a dispute, with the help of an impartial third-party (the mediator), attempt to work toward a mutually satisfactory solution. By agreeing to mediate, parties agree to negotiate to settle their differences. Neither USA&M nor any mediator has the power or authority to render a binding decision or to force the parties to accept a settlement. 

Initiating the Mediation Process

To begin the mediation process, either party may contact USA&M. USA&M will contact all parties and propose mediation.

Selecting a Mediator

Upon agreement of the parties to mediate, USA&M will help the parties select a mediator if the parties have not already agreed upon an individual. No person shall serve as a mediator in any dispute in which that person has any financial or personal interest in the result of the mediation. The mediator shall disclose any circumstances likely to create a presumption of bias or interest in the outcome of the proceedings, or prevent a prompt meeting with the parties. In the event either party thereafter objects to such mediator, a new mediator will be appointed always subject to the approval of the parties. The parties recognize that mediators are independent contractors and not agents or employees of USA&M.

Preliminary Arrangements

Upon appointment, USA&M will work with the parties to establish the time of a mediation session. Additional mediation sessions may be scheduled as agreed by the parties and the mediator.

Conduct of Mediation Sessions

At the mediation session, the parties will be prepared to discuss the situation. Such discussions may include relevant documents and a description of witnesses and other evidence. For more complex cases, the mediator or USA&M may ask the parties for written materials or information in advance of the mediation session.

At the mediation session(s), the mediator will conduct an orderly settlement negotiation. Parties will be represented by a person with authority to settle the case. The mediator may conduct separate private meetings (caucuses) with each party in order to improve the mediator’s understanding of the respective positions of each party.

Confidentiality

The parties recognize that mediation proceedings are settlement negotiations and that all offers, promises, conduct and statements, whether written or oral, made in the course of the mediation are inadmissible in any litigation or arbitration of their dispute. The parties agree to not subpoena or otherwise require the mediator or employees of USA&M to testify or produce any documents in any future proceedings. No recording or stenographic record will be made of the mediation session. Evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation session. In the event the parties do reach a settlement agreement, that settlement agreement will be admissible in court or arbitration proceedings to enforce it, unless the parties agree otherwise. Any information disclosed to the mediator in a private caucus shall remain confidential unless the party agrees that it may be disclosed.

Discovery

If one or more of the parties has a substantial need for discovery in order to prepare for the mediation session, the parties shall agree on a plan for such necessary discovery. Should they fail to reach agreement, the parties may present the matter to the mediator(s) for a non-binding recommendation.

Not Acting as Legal Counsel or Expert

All parties recognize that at the mediation session(s) and at every other point of the proceedings:

  • Neither USA&M nor the mediator will be acting as a legal adviser or legal representative for either or all of the parties;
  • Neither USA&M nor the mediator has a duty to assert, analyze or protect any legal right or obligation including lien rights, statutes of limitation, or any other time limit or claim requirement;
  • Neither USA&M nor the mediator has a duty to make an independent expert analysis of the situation or raise issues not raised by the parties, or determine that additional necessary parties should participate in the mediation;
  • Neither USA&M nor the mediators can guarantee that the mediation session will result in a settlement;
  • Parties may be represented by an attorney at any stage of the mediation process, and are encouraged to consult legal counsel concerning the proceedings or any proposed settlement agreements. USA&M may require that a party be represented by an attorney;
  • USA&M employees and mediators are entitled to immunity from suit. Neither USA&M, USA&M administrators, nor the mediator are necessary parties in any proceeding to enforce any settlement agreement.
Termination

The mediation shall be terminated in any of the following circumstances:

  • By the execution of a settlement agreement by the parties;
  • By a declaration by the mediator to the effect that, in the judgment of the mediator, further efforts at mediation are no longer worthwhile; or
  • By a declaration by any party to the effect that the mediation proceedings are terminated.