Definition of Mediation. Mediation
is a process under which an impartial person, the Mediator,
facilitates communication between the parties to promote
reconciliation, settlement or understanding among them. The
Mediator may suggest ways of resolving the dispute, but may
not impose his own judgment on the issues for that of the
parties.
Agreement of the Parties. Whenever
the parties have not successfully objected to mediation
they shall be deemed to have made these rules, as amended
and in effect as of the date of the submission of the dispute,
a part of their agreement to mediate.
Consent to Mediator. The parties
consent to the appointment of the individual named as mediator
in their case. The Mediator shall act as an advocate for
resolution and shall use his best efforts to assist the
parties in reaching a mutually acceptable settlement.
Conditions Precedent to Serving as Mediator. The
Mediator shall not serve as a mediator in any dispute in which he has any financial or personal interest in the result of the mediation. Prior to accepting an appointment, the Mediator shall disclose any circumstance likely to create a presumption of bias or prevent a prompt meeting with the parties. In the event that the parties disagree as to whether the Mediator shall serve, for good cause given, the Mediator shall not serve.
Authority of Mediator. The Mediator
does not have the authority to decide any issue for the
parties, but will attempt to facilitate the voluntary resolution
of the dispute by the parties. The Mediator is authorized
to conduct joint and separate meetings with the parties
and to offer suggestions to assist the parties achieve
settlement. If necessary, the Mediator may also obtain
expert advice concerning technical aspects of the dispute,
provided that the parties agree and assume the expenses
of obtaining such advice. Arrangements for obtaining such
advice shall be made by the Mediator or the parties, as
the Mediator shall determine.
Commitment to Participate in Good Faith. While
no one is asked to commit to an intention to settle or to actually settling, the parties are committing to participate in the proceedings in good faith.
Parties Responsible for Negotiating Their
Own Settlement. The parties understand that
the Mediator will not and cannot impose a settlement
in their case and agree that they are responsible for
negotiating a settlement acceptable to them. The Mediator,
as an advocate for settlement, will use every effort
to facilitate the negotiations of the parties. The Mediator
does not warrant or represent that settlement will result
from the mediation process.
Authority of Representatives. PARTY
REPRESENTATIVES MUST HAVE AUTHORITY TO SETTLE AND ALL PERSONS
NECESSARY TO THE DECISION TO SETTLE SHALL BE PRESENT. The
names and addresses of such persons shall be communicated
in writing to all parties and to the Mediator.
Time and Place of Mediation. The
Mediator shall fix the time of each mediation session.
The mediation shall be held at the office of the Mediator,
or at any convenient location agreeable to the Mediator
and the parties, as the Mediator shall determine.
Identification of Matters in Dispute. Prior
to the first scheduled mediation session, each party shall
provide the Mediator with a Confidential Summary setting
forth its position with regard to the issues that need
to be resolved. At or before the first session, the parties
will be expected to produce all information reasonably
required for the Mediator to understand the issues presented.
The Mediator may require any party to supplement such information.
Each party shall also sign the Agreement for Mediation
form and Mediation Attendance form prior to the date the
Mediation session occurs.
Privacy. Mediation sessions are
private. The parties and their representatives may attend
mediation sessions. Other persons may attend only with
the permission of the parties and with the consent of the
Mediator.
Confidentiality. Confidential information
disclosed to a Mediator by the parties or by witnesses
in the course of the mediation shall not be divulged by
the Mediator. All records, reports or other documents received
by a mediator while serving in that capacity shall be confidential.
The Mediator shall not be compelled to divulge such record
or to testify in regard to the mediation in any adversary
proceeding or judicial forum. Any party that violates this
agreement shall pay all fees and expenses of the Mediator
and other parties, including reasonable attorney's fees,
incurred in opposing the efforts to compel testimony or
records from the Mediator. At the conclusion of the mediation,
the mediator will destroy all of his notes.
The parties
shall maintain the confidentiality of the mediation and
shall not rely on, or introduce as evidence in any arbitral,
judicial or other proceeding: (a) views expressed or suggestions
made by another party with respect to a possible settlement
of the dispute; (b) admissions made by another party in the
course of the mediation proceedings; (c) proposals made or
views expressed by the Mediator; or (d) the fact that another
party had or had not indicated willingness to accept a proposal
for settlement made by the Mediator.
AN EXCEPTION TO THE
CONFIDENTIALITY PRIVILEGE IS TEXAS LAW WHICH REQUIRES THAT
ABUSE OF CHILDREN, THE ELDERLY AND THE DISABLED MUST BE
REPORTED. ADDITIONALLY, WHEN THE MEDIATOR HAS CONFIDENTIAL
INFORMATION CLEARLY ESTABLISHING THAT AN INDIVIDUAL IS
LIKELY TO COMMIT A CRIMINAL OR FRAUDULENT ACT THAT IS LIKELY
TO RESULT IN DEATH OR SUBSTANTIAL BODILY HARM, THE MEDIATOR
SHALL REVEAL CONFIDENTIAL INFORMATION TO THE EXTENT REVELATION
REASONABLY APPEARS NECESSARY TO PREVENT THE INDIVIDUAL
FROM COMMITTING THE CRIMINAL OR FRAUDULENT ACT.
No
Stenographic Record. There shall
be no stenographic record of the mediation process and
no person shall tape record any portion of the mediation
session.
No service of Process at or near the site of
the Mediation Session. No subpoenas, summons,
complaints, citations, writs or other process may be
served upon any person at or near the site of any mediation
session upon any person entering, attending or leaving
the session.
Termination of Mediation. The mediation
shall be terminated: (a) by the execution of a settlement
agreement by the parties; (b) by declaration of the Mediator
to the effect that further efforts at mediation are no
longer worthwhile; or (c) after the completion of one full
mediation session, by a written declaration of a party
or parties to the effect that the mediation proceedings
are terminated.
Exclusion of Liability. The Mediator
is not a necessary or proper party in judicial proceedings
relating to the Mediation. Neither Mediator nor any law
firm employing Mediator shall be liable to any party for
any act or omission in connection with any mediation conducted
under these rules.
Interpretation and Application of Rules. The
Mediator shall interpret and apply these rules.
Fees and Expenses . The Mediator's
daily fee shall be agreed upon prior to mediation and shall
be paid in advance of the mediation. The expenses of witnesses
for either side shall be paid by the party producing such
witnesses. All other expenses of the mediation, including
fees and expenses of the Mediator, and the expenses of
any witness and the cost of any proofs or expert advice
produced at the direct request of the Mediator, shall be
borne equally by the parties unless they agree otherwise.
