APPENDIX A Sample Mediation Rules
This set of mediation rules is used by a private dispute resolution company with which Peter has been associated, Empire Mediation & Arbitration, Inc., based in Rochester, New York.
These rules are typical and should be similar those used by mediators or mediation services handling a general variety of cases.1. Mediation defined/role of the mediator: Mediation is a voluntary process in which the parties to the dispute meet together confidentially with a neutral third party called a “mediator.” The mediator does not take sides and has no authority to make a decision, but works with the parties to help them evaluate their goals and options in order to find a solution to the dispute satisfactory to all sides.
2. Initiating the process: Any party to a dispute may begin mediation by sending to Empire Mediation & Arbitration, Inc. (“Empire”) a completed Submission Form.
3. Agreement to mediate: Empire will contact all parties to a dispute to determine their willingness to participate in mediation. If the parties agree to participate, each will sign an “Agreement to Mediate” before the commencement of the first mediation session.
4. Appointment of mediator: From its panel of mediators, Empire will propose to the parties the names of one or more mediators qualified and available to mediate their case. The panelist will be chosen by agreement of all the parties.
5. Scheduling/notice of mediation: Empire will schedule the mediation at a time and place convenient to all parties, and notify the parties in writing of the date, time and location of the session. The mediation may be rescheduled upon a party’s request but a rescheduling fee will be assessed against the requesting party.
6. Representation at session: Each party must be represented at the mediation by a person with authority to settle the dispute. Individuals may be represented by legal counsel, and counsel are encouraged to have their clients participate.
Insurance companies may be represented by claims staff or defense counsel. Other business corporations may be represented by executive staff or counsel. It is not necessary for witnesses to attend the mediation, but if they do, their testimony will be heard at the mediator’s discretion.7. Rules of evidence: The rules of evidence common to judicial and arbitral proceedings do not apply in mediation. Any statement, document or other record offered by the parties will be admissible unless the mediator, in his or her sole discretion, finds it to be irrelevant or otherwise inappropriate in the session.
8. Session procedure-opening statements: The mediator will commence the session with an Opening Statement in which he or she will explain the purposes and procedures of the session. The parties will then make their opening statements, explaining their positions on the issues in dispute, including the presentation of any documents, photographs and oral or written summaries of witness testimony that would be helpful to the mediator in understanding the case.
9. Session procedure-private caucuses: During the mediation, the mediator may meet in private caucus with each of the parties and counsel, to explore positions and settlement options. Any information disclosed to the mediator in the caucus will be kept confidential unless the party expressly tells the mediator it may be disclosed to the other parties.
10. Confidentiality: The mediation session constitutes a settlement negotiation and statements made during the mediation by the parties are inadmissible, to the extent allowed by law, in subsequent judicial or arbitral proceedings relating to the dispute. The parties will maintain the confidentiality of the mediation and not introduce as evidence in any future arbitral or judicial proceeding statements made by the mediator or by any other party or subpoena a mediator to testify or produce records in any such proceeding. Evidence otherwise discoverable or admissible is not made inadmissible or non-discoverable because of its use in mediation.
11. No record: No stenographic or other record of the mediation will be made.
12. Conclusion of the mediation: The mediation will conclude when the parties have reached a settlement agreement, or upon the oral or written request of the parties or at the discretion of the mediator.
13. Settlement documents: If a settlement agreement is reached during the mediation, the parties will make their own arrangements for the drafting and later execution of settlement documents.
14. Exclusion of liability: Mediators conducting sessions for Empire act as independent contractors; they are not employees of the company. Neither mediators nor the company act as legal counsel for any of the parties in the dispute. Parties have the right to legal counsel and are encouraged to obtain legal advice in connection with a dispute.
Parties not represented by counsel at a mediation may condition a settlement agreement upon review by their attorney. Neither mediators nor the company are necessary parties in judicial proceedings relating to mediation, and neither the mediator nor the company will be liable to any party for an act or omission in connection with a mediation conducted under these rules.
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