The undersigned
parties desiring to attempt to settle their dispute and related issues
through mediation facilitated by Creative Commercial Services, Inc.,
hereby mutually agree as follows:
1. Mediator Neutrality/Voluntary Process. The parties recognize
that mediation is a voluntary process for settlement negotiation.
The mediator is a "neutral" who serves as an impartial facilitator to
assist the parties to reach their own settlement. The
Mediator is NOT a judge or arbitrator, and has no authority to force a
settlement on the parties, require a party to make concessions or take
any action, make decisions about party liability or otherwise render a
binding decision. Any agreements reached between the parties as a
result of mediation, must be memorialized in a separate written
agreement signed by the parties. The parties intend to
participate in mediation until they reach an agreement. The
parties agree that in the event that any party chooses to withdraw from
the mediation process at any time, the withdrawing party will use its
best efforts to discuss the decision to withdraw in the presence of all
parties and the mediator.
2. Prior contacts. The parties and their counsel represent
and warrant that they have disclosed to the other parties and the
Mediator all prior contacts between themselves and the
Mediator.
3. Counsel. The parties agree and understand that that they
understand that no attorney-client relationship exists between the
Mediator and any party to this Agreement, nor does the Mediator serve
as representative for any party. Each party may seek their own
legal counsel at participate in the mediation process. The
parties are advised to have their own legal counsel review any written
agreement for settlement resulting from mediation prior to
signing. The parties acknowledge that they have had an
opportunity to review this agreement and the fees and policies of
Creative Commercial Solutions before executing this Agreement to
Mediate.
4. Mediation Conferences and Caucuses. The parties understand and
agree that as part of the mediation process, the Mediator may meet in
confidential "caucus" sessions separately with each party and/or their
counsel. The Mediator treats any information received in caucus as
confidential and will refrain from disclosing such information to the
other party or its counsel, unless the Mediator is specifically
authorized to disclose designated information. The Mediator may at the
request of either party, counsel or on his own initiative, conduct any
conference pursuant to this agreement by telephone, video, web cast or
other means of communication.
5. Confidentiality, Immunity and Indemnification. The parties and
mediator agree to enter a separate Confidentiality Agreement, prior to
commencement of the Mediation proceedings to enable the parties to
discuss freely all aspects of their dispute and allow the Mediator to
effectively assist the parties in reaching a voluntary resolution of
their dispute. In addition, the parties further agree:
a. All written, oral
and non-verbal communications made or provided in connection with the
mediation services provided pursuant to this Agreement will be treated
as privileged settlement discussion, are and will remain
confidential.
b. That no communications, whether written, oral or non-verbal,
nor any document produced, whether in print, electronic, or by other
means, which is not otherwise independently discoverable shall be
offered or received as evidence or used for impeachment or for any
other purpose in any current or future litigation. The provisions
of Florida's Mediation Confidentiality and Privilege Act are
incorporated by reference as if fully set forth herein.
c. That the Mediator shall have the same common law and statutory
immunity as judges from suit for damages or equitable relief and from
compulsory process to testify or produce evidence based on or
concerning any action, statement or communication in or concerning the
mediation conducted pursuant to this Agreement. The parties
further agree that neither they nor their attorneys will subpoena or
call the Mediator to produce any notes or documents related to this
mediation or to testify concerning any notes, documents, thoughts or
impressions in any legal or administrative proceeding of any
kind. The parties acknowledge and understand that the Mediator
will destroy all notes taken during mediation immediately upon
conclusion of the mediation. Therefore, if any party attempts to
compel the Mediator to testify or produce documents or notes, that
party shall be liable for and shall indemnify the Mediator for any and
all liabilities, costs and expenses, including attorneys' fees and lost
professional time, incurred in resisting such compulsion and in
testifying if required to do so by a court of competent jurisdiction.
6. Fees, Costs and Expenses. Mediation sessions are scheduled for
minimum periods of 3 hours or a full day. The initial fee for a
half-day mediation session for a two party matter is $600 per
party. The initial fee for a full day mediation session for a two
party matter is $1,400 per party. The initial fees include all
case scheduling, administrative time, file preparation, and review time
for the basic pleadings (complaint, answers, cross/counterclaims,
etc.)and Mediation Summaries from each party (four page maximum
please).
Additional time for mediation preparation (including telephone, video
or web conferences) preparation for complex or document intensive
cases, preparation of documents, agreements and memorandum of
understanding, additional conferences and review of substantial
documentation is billed at $250 per hour, plus expenses (including but
not limited to long distance, photocopies, postage, courier fees,
etc.) to be split evenly by the parties, unless otherwise agreed
by the parties. Additional Conferences are billed at two hour
minimum increments. The parties and counsel agree that
Conferences canceled less than 5 business days in advance are charge a
minimum of two hours. Travel expenses are billed for
mediations or conferences requiring Mediator travel of more than 100
miles. Travel time in excess of 100 miles is billed at $100 per
hour, plus actual costs (airline, hotel, taxi, parking, meals, etc.)
and will be paid equally by the parties unless otherwise agreed by the
parties. The parties and their counsel agree that all fees and
expenses of the Mediator shall be paid equally by each party, unless
the parties agree otherwise.
7. Benefit of Agreement. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, and the Mediator shall be
deemed a third party beneficiary hereof.
