1. Mediator. The mediator in this case will be the All American
Dispute Resolutions On Line ("AADROL") Chief Mediator, or other AADROL
mediator assigned by the Chief Mediator (“Mediator”), subject to the
parties option to request a different mediator from AADR's listed
mediators.
2. Date, Time and Location. The mediation will
take place on the day of the reservation, subject to the parties' right
to request the mediator to mediate on a different mutually agreeable
date and time.
3. Governing Law. This agreement is governed
by and shall be interpreted in accordance with the laws of the State of
California. Venue for all purposes shall be in Kern County Superior
Court. This mediation is subject to California Evidence Code § 703.5
and 1115-1128.
4. Mediator’s Role. The parties understand
that the mediation process involves the services of the Mediator as a
neutral person to facilitate communications by and between the parties
to assist them in reaching a mutually agreeable resolution of this
matter. The parties recognize that the Mediator is acting in the
capacity of a neutral intermediary and a settlement facilitator, and
that the Mediator is not an advocate. All parties acknowledge that
they understand that the Mediator is not being retained to give legal
advice and that any statements made by the Mediator will not be
considered as such. Furthermore, all parties acknowledge that they are
represented by counsel who are providing them with legal representation
in this matter, and that they will look solely to their retained
counsel for legal advice in this matter. The Mediator shall not be held
liable, and is hereby released, for any statements, opinions,
suggestions, or conclusions expressed in his role as a Mediator, as
well as for any acts, errors or omissions of any kind.
5.
Voluntary Participation. All parties acknowledge that they are
entering into this process voluntarily and of their own free will.
This mediation is a private mediation and the parties acknowledge and
confirm that the Mediator has been selected, agreed upon, and retained
by the parties and that the Mediator was not selected, appointed or
referred to the parties as part of any court mediation program.
6. Disclosure and Waiver of Conflicts of Interest. The Mediator hereby makes the following disclosures:
To the best of the Mediator’s knowledge and recollection, and based on
a review of AADROL’s records, there is no material information to
disclose regarding this matter based on the information provided by the
parties to the date hereof. The parties and their counsel hereby
acknowledge that they have undertaken all investigation and due
diligence they deem necessary regarding the use of this Mediator, and
agree that any further disclosures requirements are hereby waived. The
undersigned further agree that any basis for disqualification of the
Mediator due to these disclosures are waived, and that AADROL's Chief
Mediator Jack A. Draper, or other AADROL mediator designated by him,
may sit as the sole mediator in this matter and that both Mediator and
AADROL are forever released, and will be fully defended and
indemnified, from any and all liability and or damages, regardless of
nature, arising from Mediator’s sitting as a mediator herein.
By signing this mediation agreement, each of the undersigned and their
clients and/or representatives hereby waive(s) any actual or perceived
conflict which Mediator may have by virtue of disclosures contained
herein, or by virtue of any past or current affiliations with counsel
herein, and agree that Mediator may proceed to act as a neutral
Mediator in this matter. The Mediator has offered to provide
additional information regarding each of these disclosures upon
request and none has been requested. The counsel and parties hereby
acknowledge that they have undertaken all investigation and due
diligence they deem necessary regarding the use of this Mediator, and
agree that any further disclosures requirements, regardless of nature
or type, are hereby waived and that the Mediator and AADROL, will be
held harmless and indemnified from any and all claims, causes of action
or suits arising out of any claim or assertion of a conflict of
interest on the part of the Mediator or AADROL.
7.
Confidentiality. All parties and their counsel understand that the
mediation is a confidential process. All statements and discussions
occurring during the mediation process are inadmissible as evidence in
any later legal proceeding, and the parties agree that the Mediator
shall not be compelled, in discovery, arbitration, administrative
proceedings, civil action, or in any other legal proceeding, to give
testimony or disclose evidence of the mediation proceedings. Should
any party attempt to subpoena or otherwise compel the Mediator to
testify or provide or disclose evidence obtained during or as part of
the mediation process, that party shall be responsible to pay the
reasonable attorneys’ fees and costs incurred by the Mediator pursuant
to Evidence Code § 1127. Said party also agrees to reimburse the
Mediator, at his hourly rate, for all time spent responding to any such
subpoena or other legal or administrative process to compel testimony
or evidence.
Evidence otherwise admissible or subject to
discovery outside of mediation shall not be or become inadmissible or
protected from disclosure solely by reason of its introduction into or
use during the mediation process. It is agreed and understood that
this agreement itself is admissible in any other proceeding to enforce
a settlement or protect confidentiality.
8. Settlement.
The Mediator will facilitate the negotiations, but is not responsible
for preparing a written or enforceable settlement agreement. This is a
job for the lawyers involved. Before signing a written settlement
agreement, the mediating parties shall obtain a review of the agreement
by their legal counsel and will look to their attorneys for advice on
the form and substance of any such settlement agreement. Any written
settlement agreement prepared by the parties during or as a result of
the mediation process is intended to be binding and subject to
enforcement pursuant to California Code of Civil Procedure § 664.6.
9. Fees of Mediator. Unless otherwise agreed in
advance of the mediation, the parties to this dispute shall share
equally, on a pro-rata basis, the costs and fees of the Mediator, as
set forth on AADROL's web site store (
shop.mediate4u.com),
the terms and conditions of which are incorporated herein by reference
as though fully set forth in this agreement. The parties and counsel
for the parties, agree to be joint and severely responsible for the
payment of any fees and costs of the Mediator not already paid for at
the foregoing web site store and to satisfy any outstanding amounts
owing in the event of a default by any party to this agreement.
10. Cancellation/Continuance Policy:
Full refund if written cancellation or notification of continuance
received at least 3 calendar days prior to mediation/arbitration.
Otherwise, reservation payment is non-refundable.
11. Billing/Payments:
Any amount due for Mediator’s mediation services hereunder after
crediting the parties’ respective deposits will be billed promptly
after the mediation date to the responsible parties. Each party agrees
that any amounts billed by Mediator are due upon receipt of such
billing and agrees to promptly pay such billing. The AADROL Tax I.D.
No. for payments is 77-0445803.
