AGREEMENT TO MEDIATE

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This Agreement to Mediate is an agreement between the undersigned (hereinafter referred to as the "parties" or individually as a party) and Holly Birdwell (hereinafter referred to as the "Mediator") with Eagle River Mediation (hereinafter referred to as "ERM") to enter into mediation. The parties and the mediator agree to enter into mediation under the following terms and conditions:

MEDIATION FEES
 

1.   MEDIATION FEES.  

a. The mediation fee is $200.00 per hour.

b. Mediation sessions are 2 hours.

c. Fees are split equally between the parties.

d. Mediation sessions are billed as a block of time, whether used in part or whole.

All work performed by the mediator and ERM staff outside of the mediation session is also billed at the same rate of $200.00 per hour. Fees are billed in increments of one-tenth (.1) of an hour, as outlined in the chart below.

Billable fees include, but are not limited to, the following:

a. Correspondence: Phone calls, emails, and text messages

b. Preparation time before and after mediation sessions

c. Reviewing materials provided by the parties

d. Additional session time (if your session extends past the scheduled time)

e. Preparing and drafting summaries and agreements. 

f. Correspondence with the parties' counsel or other advisors

g. Correspondence with other professionals on behalf of the parties

h. Other tasks that are reasonably necessary to facilitate an agreement

i. Research

j. Other agreed-upon services

INCREMENTAL BILLING CHART

2.   FORM AND TIMING OF PAYMENT. Each session is paid for one session in advance, as outlined below.

a. First Session. Payment for the first session must be received in full by both parties before the first session is scheduled. 

b. All Other Sessions. All other sessions must be paid in cash at the beginning of the session.

c. Form of Payment. Payments must be made in cash at the beginning of each session. Payments made via credit or debit card will incur a 3% fee. We do not accept checks. 

d. Drafting Agreements. The majority of the Agreement is drafted outside of the session and is billed at the same rate outlined herein. Payment for the agreement is due at the beginning of the Review Session (for in-person review sessions) or prior to the start of the session via online payment (for Zoom or phone review sessions).   

e. Invoices. Invoices must be paid promptly upon receipt of the invoice otherwise, late fees, as outlined herein, will be applied. 

f. Additional Fees. If the cardholder contests a credit card charge, the contesting party will be responsible for paying the mediator and staff of Eagle River Mediation a rate of $400.00 per hour for time spent on the disputed charge. Additionally, the contesting party will incur a one-time disputed charge fee of $400.00. If Eagle River Mediation permits you to write a check and the check is bounced, you will incur a one-time fee of $50.00 and must submit payment upon receipt of the invoice.

3.   LATE PAYMENT FEE. The parties must maintain a zero balance at all times. The parties agree and understand that a recurring late fee of $50.00 will be applied to balances after seven (7) days if payment is not received; this is a recurring and compounding late fee every seven (7) days until payment is received.

4.  PAYMENT ENFORCEMENT. If ERM needs to enforce any provision outlined herein to collect fees or costs, the party(ies) are solely responsible for all legal fees, costs, and expenses outlined in 5.a. below. Additionally, the party(ies) will pay an increased hourly rate of $400.00 per hour for all work and time associated with collecting fees.

a. Fees and costs include, but are not limited to, attorney costs and fees, court costs and fees, collection costs and fees, the time involved in drafting and filing documents, travel time to and from the courthouse, waiting time in the courthouse, receiving and making telephone calls, drafting and receiving letters or emails, correspondence with the party(ies), correspondence with professionals related to this matter, and all other tasks associated with the collection of fees.

5.  OUTSTANDING PAYMENT FOR SERVICES. If either party elects to terminate mediation for any reason before executing the final agreement, the parties are responsible for paying all mediation fees up to that point, including any work completed on the final agreement.

 MEDIATION

1.  ROLE OF MEDIATOR. The mediator's role, an expert in dispute resolution, is to act as a neutral facilitator to support and guide the parties to a workable solution. The mediator will help reduce communication obstacles, identify and prioritize issues, explore alternatives, and facilitate voluntary agreements resolving the dispute. The mediator will not serve as an advocate for any party, make judgments about who is “right” or “wrong,” provide legal advice, or impose any decisions on the parties. Instead, the mediator will ask questions to understand the issues, help the parties understand the other person's point of view, discuss weaknesses in the parties' arguments, or make suggestions to resolve the conflict.

2.  CONFIDENTIALITY. All communications throughout the mediation process, including pre-mediation conferences, caucuses, phone calls, emails, and mediation sessions, are strictly confidential. Neither party shall reveal information from mediation in any court proceeding or any person who is not a party to such discussions nor communications. Persons present during the mediation or persons involved in discussions or communication regarding the mediation shall not reveal such information in any court proceeding or to any person not a party to such discussions or communications. Individual conversations with the parties are kept confidential between the mediator and said party, and the mediator is not responsible for disclosing information discussed in caucus or individual conversations to the other party. Exceptions to confidentiality:

a.  All mediation participants agree in writing, including the mediator

b.  A party to the mediation is in danger of bodily harm

c.  A threat or statement of a plan to inflict bodily injury or commit a crime of violence

d.  Previously unreported cases or suspicion of child or elder abuse

e.  The mediator has evidence that a child has been abused, abandoned, or neglected

f.  The mediator has evidence that is reasonably believed that it must be disclosed in order to prevent a party or person from committing a crime, concealing an ongoing crime, or posing a serious risk of bodily injury or death to another person

g.  In general, non-identifiable terms for training or program evaluation

h.  Within the confines of the company for administrative and training purposes

3.  JOINT & SEPARATE SESSIONS. Both joint and private sessions may be used by the mediator(s) to facilitate resolution. Private sessions are strictly confidential unless the party agrees the mediator can share information discussed during private sessions. Any party to a mediation may request a private meeting at any time. The mediator will not correspond with either party individually outside of a scheduled mediation session. 

4.  CANCELATION, RESCHEDULE AND NO-SHOW POLICY. If it is necessary to cancel or reschedule a mediation session, the party canceling or rescheduling must provide seven (7) business days advance notice to Eagle River Mediation and the other party; otherwise, the party canceling or rescheduling is solely responsible for the entire session fee. Business hours are from 9:00 a.m. on Monday until 1:00 p.m. on Friday. Each party is responsible for knowing the date and time of their scheduled sessions. 

5.  FULL DISCLOSURE. The parties understand full disclosure of all relevant information is required to ensure the success of mediation. Accordingly, the parties agree that they shall each fully and honestly disclose all relevant information and documents, including information that would otherwise be available through the discovery process of litigation. Each participant agrees to provide complete and relevant information and documents to each other and to the mediator.

6.  NO RECORDING. The mediation sessions are private and may not be recorded electronically or broadcast in any way without all participants, including the Mediators' permission. Additionally, phone conversations between the mediator and each party are private and may not be recorded without the mediator's consent and permission.

7. NON-PARTICIPATING OBSERVERS. Parties who wish to bring non-participating observers must obtain approval from the mediator in advance. All observers will sign and be governed by this Agreement to Mediate. In addition to the mediator, Eagle River Mediation staff and interns may be present at mediation sessions.

8. TESTIMONY AND RECORDS. The participants agree that they will not at any time before, during, or after mediation call the mediator as a witness, subpoena or demand the production of any records, notes, files, work product or the like produced by the mediator in any legal or administrative proceeding concerning the issues addressed in mediation or concerning any other issue. If a participant seeks to do so, that participant will indemnify the mediator as to all costs in connection therewith, including attorney’s fees, and the party will compensate the mediator for all time spent at the rate of $400.00 per hour.

If either party, or anyone on either party's behalf, attempts, either successfully or unsuccessfully, to subpoena the mediator to any legal action, proceeding, or deposition (or in any way involve the mediator in any other type of discovery or court proceeding), which in any way relates to the mediation, the said party will pay the mediator $400.00 per hour and will pay all costs and fees the mediator incurs in the attempt to challenge such subpoena. These fees include but are not limited to attorney costs and fees, courts costs and fees, filing time, arguing and finalizing a Motion or Order to Show Cause, travel time to and from the courthouse, waiting time in the courthouse, receiving and making telephone calls or emails, and drafting and receiving letters involving such matters. If the mediator’s attempt to challenge is defeated, the party will pay all of the mediator’s costs and fees. The party will also pay the mediator $400.00 per hour for the mediator’s time related to the matter, including but not limited to attorney fees, court fees, travel time to and from the courthouse, waiting in the courthouse, testifying, conferencing, telephone calls, emails, letters, any other communication related to the matter, and all other time associated with matter. The said party shall also pay the mediator $400.00 per hour for time spent on any appeal involved in such matters and pay all costs and fees associated with any appeal.

9.  RELEASE OF DOCUMENTS. This Agreement to Mediate and any written agreements signed by the parties resulting from this mediation may be used in subsequent relevant proceedings.

10. RECORDS. The mediator will destroy any parties' documents within thirty (30) days of the final mediation session. The only document the mediator will keep on file is a copy of the final agreement if one is reached, and a copy of this Agreement to Mediate.

11. CONSULTING WITH LEGAL ADVISERS. Any party not represented by a legal professional or other appropriate professional adviser is advised to consult one as desired at any time before, during, or after the mediation session and throughout the mediation process as each party desires. The parties understand that the mediator is not an attorney, is not giving legal advice, and is not analyzing or protecting any party’s legal rights in the mediation process.

12. NO SUBSTANCE USE. The parties shall show up to mediation sessions in a sober state. There will be no alcohol, tobacco, or substance use during any mediation sessions or immediately prior to a mediation session. If one or more parties show up to the mediation session under the influence of alcohol, prescription drugs, or illicit drugs, the mediation session will be canceled, and the party under the influence will be responsible for all session fees.

13. TERMINATION. Participation in mediation is voluntary, except when ordered by the Court. A party may withdraw from or suspend the mediation by notifying the other party[ies] and the mediator by written notice. Additionally, the withdrawing or suspending party shall inform the mediator of the reason for withdrawing from or suspending the mediation. The parties understand the mediator may suspend or terminate the mediation if she feels the mediation will lead to an unjust or unreasonable result; if the mediator determines that she can no longer effectively perform her facilitative role; if the mediator feels that an impasse has been reached; or if the parties do not follow the mediation ground rules. If the mediator terminates a mediation session due to the parties’ unwillingness to follow the mediation ground rules, the parties are responsible for paying for the full session fee.

14. MEDIATED AGREEMENTS. All terms of a settlement are non-binding until they are put into a written agreement and signed by all parties, or, in the case of a divorce, until an order is entered by the court. Any mediated agreement may affect the legal rights of the parties. Each party is encouraged to consult with an attorney for legal advice throughout the mediation process. Each party is encouraged to have an attorney review any written agreement before signing it, and when applicable, before filing it with the court.

15. EXCLUSIONS OF LIABILITY AND INDEMNITY.

a. The mediator will not be liable to a party for any act or omission by the mediator in the performance or purported performance of the mediator's obligations under this agreement.

b. Each party indemnifies the mediator against all claims by that party or anyone claiming under or through that party, arising out of or in any way referable to any act or omission by the mediator in the performance or purported performance of the mediator's obligations under this agreement.

16. DISPUTE RESOLUTION. If a dispute arises out of the mediation session between a party and the mediator that cannot be resolved by direct negotiation between the party and the mediator, the dispute shall be submitted to mediation with a mutually agreed-upon mediator or one that the Court has appointed.

MEDIATION GROUND RULES

When people are emotional, the power of emotions overwhelms rationality, and Logic is suppressed. As a result, the IQ points needed to consider decisions are depleted temporarily. Therefore, be aware that you may misunderstand something if you become emotional about the conflict.

1. Be respectful. Listen respectfully and sincerely. Try to understand the other person's needs and interests.

2. Do not interrupt when the other party is speaking. Instead, make a note or what you would like to say and wait your turn to speak. 

3. Do not blame, attack, call names, or engage in put-downs. Do not use profanity. Use non-inflammatory words/language. 

4. Do not make assumptions about what the other party thinks, feels, or wants. Do not speak for the other party.

5. Ask questions for the purpose of gaining clarity and understanding. Work to understand the other party’s perspective without being judgmental about the person or the message.

6. Speak for yourself; make “I” statements rather than “You” statements.

   Use the other party’s first name when speaking about the other party. Avoid “he” or “she.”

7. Focus on solutions instead of problems. Raise your concerns with a constructive suggestion as to how it might be resolved.

8. Focus on future actions rather than past events.

9. Be open to creative solutions.

10. No use of cell phones during the session. Cell phones must be powered off during the session.

11. Children are not allowed in mediation.

12. No chewing tobacco, alcohol, or drug use during the mediation session.

13. Firearms are not allowed in the mediation session.

14. The mediator must approve the presence of additional parties in the mediation session.

THE MEDIATOR IS IMPARTIAL AND FOCUSED ON HELPING YOU REACH A SOLUTION.

PLEASE ANSWER THE BELOW QUESTIONS. YOUR ANSWERS HELP THE MEDIATOR TO STRUCTURE THE MEDIATION IN THE MOST EFFECTIVE MANNER. 

YOUR ANSWERS ARE CONFIDENTIAL