MEDIATION AND FEE AGREEMENT

THIS AGREEMENT made this day of , 201_, BETWEEN

( PARTY or PARTIES)

and ELINOR R. REINER (MEDIATOR):

  1. Purpose of the Mediation:Mediation is a voluntary process designed to develop a satisfactory and lasting agreement between or among Parties to a dispute and thereby avoid either the need to commence or to continue litigation.
  1. Role of Mediator: The Mediator is an impartial neutral who is engaged to assist the parties in reaching an amicable settlement. The Mediator does not act in any legal capacity by or on behalf of any Party and none of the Mediator’s interactions with the Parties, either orally or in writing, creates an attorney/client relationship. All communications from a Party to the Mediator will be confidential, and as more particularly set forth below may not be disclosed by the Mediator to any other person except with the consent of the Party.
  1. Impartiality of the Mediator: The Mediator will remain absolutely impartial with respect to her contacts with any party and will not advocate the interests of any one Party over another. As a neutral, the Mediator may from time to time express an opinion to a Party regarding the viability of any position taken in order to assist in moving the matter to an amicable resolution which she believes is in the best interests of the Parties.
  1. Non-Disclosure and Mediator Confidentiality:All statements made during the course of the mediation are privileged settlement discussions, are made without prejudice to any Party's legal position, and are non-discoverable and inadmissible for any purpose in an later legal or administrative proceeding. The Party or Parties agree that the mediator will not be required to disclose to any third person any information or statements made during the mediation process. The Mediator will not voluntarily disclose any information she receives to any other person without the consent of the person making the statement or providing the information. The Mediator shall not be requested to testify in any court proceeding and it is understood and agreed that the provisions of the California Rules of Evidence, Sections 1115-1128 shall apply.
  1. Participants: Participation in any mediation session is limited to the named Parties and their attorneys. However, with consent of the Parties, other persons who may be integral to the proceedings may attend and/or participate, such as financial advisors, real estate appraisers, insurance adjusters and experts.
  1. Full Disclosure: All Parties are expected to act in good faith and disclose fully all relevant information, including but not limited to state and federal income tax returns, pay stubs, brokerage and/or bank statements, property appraisals and any other data pertinent to reaching an amicable resolution.
  1. Separate Sessions: During the mediation sessions the Mediator may and often will ask the Parties to meet separately with her in order to aid in the process of dispute resolution. Any Party, or their attorney, may request a separate session with the Mediator at any time. At the conclusion of any separate session, the Mediator will ascertain whether there is consent to the Mediator sharing any information disclosed to the Mediator with the other Party and will not disclose the same without such consent.
  1. Attorneys and Resource Persons: The Parties are encouraged to consult with an attorney of their choosing and/or any resource persons respecting the subject matter of the mediation and their legal rights and obligations. The Mediator may discuss any pertinent issues with any attorney or resource person a Party selects unless requested not to do so. If a Party chooses to attend mediation without an attorney, the Mediator strongly encourages that Party to seek attorney review of the terms of any final agreement.
  1. Liability: There can be no guarantee that mediation will result, either in whole or in part, in a settlement of the dispute. Should this occur, and the Parties determine to proceed to litigation, arbitration or some other avenue of dispute resolution, the Parties agree pursuant to paragraph 4 above, that they will not subpoena or otherwise request that the Mediator offer testimony or produce any documents, records or work product (such as private notes). Further, as more particularly set forth in paragraph 12, below, the Parties agree to release and to hold the Mediator harmless from any potential liability arising from any act or omission during the mediation.
  1. Withdrawal from Mediation: Any Party, or the Mediator, may upon reasonable notice withdraw from further participation in the mediation at any time. However, once a final settlement agreement is signed, all Parties to the mediation understand and agree that it is binding upon the signatoriesand may be submitted to a court with appropriate jurisdiction to be incorporated in any judgment or order issuing out of such court.
  1. Post-Session Communications: The Parties waive the requirements of California Evidence Code Section 1125 as to the “end” of the mediation in order to protect post-session communications, whether in person, by telephone,email, regular or otherwise, under the mediation confidentiality privilege. The Parties agree that no termination of mediation will be presumed without written notification by one Party to the other Party or Parties and the Mediator that they consider the mediation terminated.
  1. Fees: The parties understand and agree that the Mediator, Elinor R. Reiner, shall charge for her professional services in this matter a flat rate of $400.00 per hour, the total cost of which shall be shared equally between or among the Parties unless they otherwise agree. This fee shall be paid to the Mediator regardless of whether a final agreement is reached as a result of the mediation. Bills for mediation services shall be sent to the Parties or their attorneys as soon as reasonably possible after the mediation is concludedand shall be due and payable immediately upon receipt.
  1. Limited Liability Release and Indemnification: The parties agree to release the Mediator from any and all claims arising out of their failure to: (a) reach full or partial agreement; or (b) decide to enter into any agreement of any sort. The Mediator makes no representation that the Parties will reach an agreement on any issues, disputes or controversies discussed during the mediation, either in whole or in part, nor does the Mediator have any responsibility or liability concerning the terms and conditions of any agreement reached by the Parties. Any Party or representative of a Party who brings any claim, action or proceeding of any nature against the Mediator, or who seeks to compel the Mediator to testify shall be responsible to indemnify the Mediator for any costs, expenses, loss or damage incurred, including without limitation attorneys fees and adjunct expenses incurred in connection with such claim, action or proceeding.
  1. Binding Agreement: Unless otherwise agreed in writing duly signed by the Parties, their counsel and the Mediator, this Mediation and Fee Agreement is and shall be fully binding and enforceable in any action in a court of appropriate jurisdiction.

WHEREAS, THE PARTIES, THEIR COUNSEL AND THE MEDIATOR HAVE SET THEIR HAND AND SEAL THIS DAY OF , 201__.

PARTICIPANTS: COUNSEL:

______

______

______

______

MEDIATOR: ______

Judge Elinor R. Reiner

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