Mediation Guidelines & Agreement to Mediate
In order to have the most effective mediation process possible, all the parties involved must agree to work within the following guidelines:
1. The parties understand the purpose of mediation is to find a usually acceptable resolution of the issues they bring to each session. The mediator will lead negotiations to assist in developing a settlement that is acceptable to the parties. The mediator does not make decisions for the parties.
2. For mediation to be successful, open and honest communication, negotiation and statements are essential. The parties agree to make complete and accurate disclosure of all matters relevant to the process of settlement. This includes providing each party in the mediation with all relevant information that would be available in the discovery process of a legal proceeding. If a party deliberately withholds information or supplies false information relevant to the settlement, then the agreement reached in mediation may be set aside.
3. The parties agree to be respectful in all communication, allowing each participant to finish his/her comment or statement before responding. The online format may amplify and exaggerate sound so maintaining a regular speaking voice is important. In addition, please remember that the camera does not always transmit hand gestures or non-verbal cues, so it is important to verbalize all communication during an online mediation session.
4. Information gathered in the mediation process is confidential and privilege. All such communications by the parties shall be treated as strictly confidential by the mediator and the parties. The mediator will not disclose any information learned during the mediation without the express permission of the parties. Confidential matters disclosed in a private meeting or caucus with one party will not be divulged to the other party without the consent of the party making the disclosure.
5. For Online/Virtual Mediations -- The parties agree to use an online platform for the mediation session. Parties understand that the Cayton Legal LLC uses, ZOOM, which is an online platform, to conduct the online mediation session(s). Parties agree that they will download and install the software from the program website and establish a free account, if necessary, to participate in the online mediation session(s). The parties agree to familiarize themselves with the operation of the online program platform so that they are able to operate the system and participate in the online mediation session(s). Parties acknowledge they have a strong and secure WiFi or ethernet (hard-wired) connection for their computer. Parties further affirm that they are not on a public WiFi connection.
6. Parties understand that the mediator uses DocuSign as an online platform for obtaining signatures in the execution of documents required during the mediation process. Parties affirm they have created an account with DocuSign, if necessary, to utilize the service. In the event that parties have chosen not to use DocuSign for the execution of documents, or in those instances when original signatures are required, then parties will receive copies for printing and signing and will be responsible for returning the executed copies to the mediator via mail or overnight delivery service.
7. In order to maintain confidentiality, the parties agree not to call the mediator nor any member of the mediation staff or court designee to testify as a witness at any proceeding, nor to subpoena or otherwise seek discovery of any written materials in his/ her/their possession developed for or in the course of this mediation. To the extent that the law permits such as discovery the parties hereby waive their rights thereto.
8. Nothing in these guidelines prevents or excuses the mediator for reporting such crimes, threats of bodily injury, or abuse to a child or party, or such other matters as to which the law imposes a duty to report.
9. It is expressly understood by the parties that the mediator does not offer legal advice in this mediation and is not functioning as an attorney whether or not the mediator is in fact an attorney. In this mediation, the mediator’s role is to aid the parties and seeking a fair agreement in accordance with their respective interest. The construction of a proposed agreement and any question of law should be referred by the parties to their own legal counsel. All parties are encouraged to have an independent attorney look over any completed agreements.
10. All parties further agree that unless and until an agreement/memorandum of understanding is reduced to writing AND signed by all parties present, it is not final and binding on the parties.
11. The mediator is not liable for the results of the mediation. Any agreement written is the agreement of the parties to the mediation. The mediator shall not be held liable for civil damages for any statement, action, omission, or decision made in the course of the mediation process unless that statement, action, omission, or decision is 1. grossly negligent and made with malice, or 2. is in willful disregard of the safety or property of any party to the mediation process.
12. All parties agree to participate in good faith, in each scheduled mediation session. All parties agree to work toward the resolution of the issues. Should it be impossible, however, to reach an agreement through mediation, all parties understand the case may proceed in a regular fashion through the court process.
13. The parties understand that payment shall be made to the mediator at the time services are rendered at the agreed-upon level of compensation as documented in our Agreement to Mediate Form.
14. By participating in the mediation session, I affirm that I have the capacity to conduct good-faith negotiations and to make decisions for myself, including a decision to terminate the mediation if necessary.
15. The parties understand that the mediator, mediation staff, nor any court designee shall provide legal or financial advice. They understand that they have been or will be directed and encouraged to seek independent legal advice.
16. The parties agree that they will not violate confidentiality by using any type of device to record any portion of the mediation including before or after the session has formally begun nor any breaks that occur during the mediation. No recording device of any type is allowed to be used during the time you are meeting with the mediator nor, if in person, in the offices, conference rooms, waiting rooms, etc., of the address where the mediation occurs.