AGREEMENT TO MEDIATE
THIS AGREEMENT is entered into by and between James C. Williams, Jr. (hereinafter “Mediator”), and the undersigned this ____ day of ________________, 2010.
1. Parties. Some signatories to this Agreement are parties and representatives of parties to a certain controversy identified as _____________________________(hereinafter called “the controversy” or “the dispute”). They seek to resolve the dispute through mediation and have jointly requested the Mediator to act as a neutral third party to facilitate their settlement negotiations.
2. Mediator. It is understood that mediation is a voluntary process and that the Mediator does not act as advocate or representative for any party, and has no formal authority to make any binding decisions. It is agreed and understood that no attorney-client relationship exists between the Mediator and the parties, and that the Mediator is not providing legal services to any of the parties.
3. Attendance. It is agreed and understood that each party is required to have in attendance at the mediation such person(s) (including insurance carrier representatives, if applicable) with full authority to settle the dispute, unless otherwise agreed to by the Mediator and all parties prior to the mediation. Mediator’s consent to allowing the person with full authority not to attend the mediation is conditioned upon the mediator being able to speak directly to the person with authority in their counsel’s presence during the mediation process.
4. Private. It is understood that the mediation is private and is reserved for the parties and their representatives. Other persons may attend only with the permission of all of the parties and with the consent of the Mediator.
5. Advance Disclosure. The parties are encouraged to provide the Mediator with a brief submission prior to the mediation setting forth their position with regard to the issues and the parties’ interests that need to be addressed and resolved, and the present status of any settlement negotiations. The parties are also encouraged to list possible options for resolving the dispute. These submissions shall remain confidential unless all parties consent to the mutual exchange of the statement.
6. Fees and Costs. The fees and expenses of the Mediator will be divided equally amongst the parties, unless the parties agree otherwise, and the parties agree to promptly pay the Mediator for professional fees and expenses at the conclusion of the mediation conference, unless other arrangements are made with the Mediator. The fee will be $225.00 per hour. Unless otherwise agreed, four hours minimum will be charged, plus expenses.
7. Cancellation Charge. The mediator reserves the right to charge the parties for two hours time if the mediation is cancelled without 48-hours advance notice. No cancellation fee is made if the case is settled.
8. Travel. No travel charge will be made for mediations in Anderson, Greenville, Oconee or Pickens counties. Outside these counties, and up to 100 miles, one way, a total travel charge of $150 will be made. For locations up to 250 miles, one way, a total travel charge of $300 will be made. For locations in South Carolina further than 250 miles, a total travel charge of $450 will be made. Travel expenses may be negotiable.
9. Caucus. It is agreed and understood that the Mediator may meet and consult privately with any party or parties and/or their counsel during the mediation. Confidential information disclosed to the Mediator by parties, their counsel or by the witnesses in the course of the mediation shall not be divulged by the Mediator without consent.
10. Confidential and Privileged. The mediation constitutes settlement discussions under the applicable rules of evidence and nothing said or disclosed during mediation, nor any document produced in mediation which is not otherwise discoverable shall be admissible as evidence or for impeachment or other purposes in any civil action, arbitration or other legal or administrative proceedings. Any documents or statements made by any party shall be considered confidential. This entire mediation is subject to the South Carolina rules on mediation which provide for privilege and confidentiality.
11. Liability. The Mediator shall not be liable to any party or person for any act or omission in connection with any mediation conducted under this Agreement.
12. Mediator Not Witness. No party or other signatory to this Agreement will call or subpoena the mediator to produce any notes or documents related to the Mediation or to testify regarding any notes or documents or the Mediator’s thoughts or impressions, in any civil action, arbitration or other legal or administrative proceedings of any kind whatsoever. If so called or subpoenaed by anyone, the Mediator will refuse to so testify and to produce such notes or documents. Should any party or other signatory to this Agreement attempt to compel such testimony or production, such party or signatory shall be liable for and shall indemnify the Mediator against any liabilities, costs or expenses, including reasonable attorneys’ fees, which the Mediator may incur in resisting such compulsion.
13. Agreement to Settle. If an agreement to settle is reached, the parties agree that it will be binding.