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Mediation Agreement (Sample)

 

Estate of John Simpson vs. EquipCo of Connecticut, Inc. et al

 

WEREAS, William Simpson, Administrator of the Estate of John Simpson (“Simpson”) has filed a Complaint with the Superior Court, Judicial District of Hartford at Hartford against EquipCo of Connecticut, Inc. and Higgins Equipment Co., (both hereinafter “EquipCo”) and against Albert Henkens, Inc. (“Henkens”) seeking compensation for the death of John Simpson on May 30, 2002, and

 

WHEREAS, InsurerCo has filed as a Third Party Plaintiff and seeks to recover Worker’s Compensation benefits paid as a result of the death of John Simpson,

 

WHEREAS, Simpson, EquipCo, Henkens and InsurerCo (all hereinafter the “Parties”) wish to pursue settlement of the Dispute by means of a non-binding mediation process (the “Mediation”) thereby avoiding the delay, expense, anxiety and uncertainty of litigation, and

 

WHEREAS, the Parties have retained the of Dispute Resolution, Inc. (“DRI”) to implement the Mediation,

 

NOW THEREFORE, the Parties do hereby agree as follows:

 

Description of the Mediation. They will engage in the Mediation in an effort to settle the Dispute. Donald B. Reder, President of DRI has been mutually selected by the Parties to serve in the capacity of the neutral hearing officer (“Mediator”) to preside at the Mediation, as such may be scheduled, and as hereinafter described.

 

The Mediation session will typically be in two parts. During the first part, the joint portion, the Parties will be in the mediation room together. Each Party will have approximately 30 minutes to present its position through lawyer discourse, by way of informal testimony of the Parties or through the introduction of documents and/or the testimony of other witnesses. At the conclusion of each Party’s presentation, other parties may engage in limited non-adversarial inquiry. The Mediator has the right to question the Parties or their witnesses to clarify any matter and may terminate any opposing inquiry if he feels it is becoming non-productive.

 

During the second part, the individual caucus portion, the Mediator will have separate discussions with each of the Parties regarding each Party’s and the Mediator’s perception of the strength, weakness and exposure faced in litigating the Dispute.

The Mediator will assist the Parties in developing a mutually acceptable proposal to settle the Dispute and may, in this effort, suggest settlement options and/or positions that seem reasonable to him.

 

Scheduling of the Mediation. The Mediation will commence at 9:30 a.m. on Wednesday, April 30, 2008 at the Hartford, CT office of Hunt, Gallagher or at some other time and place and on a day and date acceptable to the Parties and the Mediator. It is contemplated that the Mediation will be concluded in one day although the Parties may, at their joint option, continue the process if they feel either that more time is needed to develop the information surrounding the Dispute or that progress is being made toward the development of a settlement proposal.

 

Good Faith. The Parties acknowledge the voluntary and cooperative nature of this settlement effort and each agrees to make a good faith effort to achieve a settlement. Each of the Parties recognizes that it is free to withdraw from the Mediation at any time, its only responsibility to DRI being the payment of fees incurred pursuant to Paragraph 4 herein.

 

Mediation Payment. The Parties acknowledge that they have each agreed to be responsible for the prompt payment of DRI’s initial billing of $600.00 per party which covers all procedural and scheduling discussions, document preparation, general administration and the first three hours of substantive time the Mediator spends on the Dispute. Substantive time includes case issue discussions with any of the Parties, review of Party submitted materials, round trip travel, participation in the Mediation and any post-Mediation fact-finding or negotiations in the interest of achieving a settlement of the Dispute. After the first three hours included in the initial invoice, each paying Party will be responsible for its proportional share of DRI’s hourly fee of $300.00 plus expenses. Any Party not paying DRI’s invoice within 30 days agrees to pay a 1% per month interest charge on any unpaid amount plus all reasonable costs of collection. Any Party canceling or postponing the Mediation within 10 business days prior thereto shall be responsible for the prompt payment of an additional fee of $500 unless Reder is able to schedule another hearing for that date.

 

Position Statements. Each Party is encouraged to provide an ex parte statement of its position, relevant documents or applicable law at least five days prior to the Mediation. DRI will not provide these statements to opposing counsel although submitting Parties are free to do so. Position statements may be delivered to 24 Deepwood Lane, West Hartford, CT 06107, emailed to Mediator4@aol.com or faxed to 860-520-4006.

 

Hold Harmless. The Parties acknowledge that DRI is making every reasonable effort to provide competent and impartial dispute resolution services and agree that the provision of these services does not constitute the giving of legal advice. No Party will hold, or attempt to hold, DRI, its officers, employees, shareholders, Directors or independent contractors responsible either for the outcome of the Mediation or for the actions or inactions or DRI, the Mediator or any independent contractors hired by DRI on behalf of the Parties.

 

Recording, Confidentiality, Admissibility. No transcript or recording will be made of the Mediation without the written permission of all Parties. All aspects of the Mediation, including without limitation, all written statements and presentations, documents, photographs and/or oral statements made by any party or its representatives and/or the Mediator will be kept confidential by the Parties and all other participants in the Mediation, will not be disclosed to anyone not a participant in the Mediation, including the court, and will be inadmissible as evidence, whether or not for purposes of impeachment, in any pending or later filed civil action directly or indirectly involving the Parties and the Parties agree to keep confidential all such aspects of the Mediation. The Mediation will be treated as a compromise negotiation for purposes of the Federal Rules of Evidence and state rules of evidence. The Mediator and all employees, officers or independent contractors of DRI with any knowledge of the substance of the Mediation will be disqualified as a witness, consultant or expert in any pending or future action relating to the subject matter of the Mediation including actions between persons not Parties to the Mediation. The Parties agree not to seek testimony from the Mediator or from any employee, independent contractor or other representative of DRI in any pending or future action relating to the subject matter of the Mediation. However, any documents, recorded testimony or other written, graphic or physical evidence that would otherwise be discoverable or admissible in the absence of the Mediation will not be rendered inadmissible or undiscoverable by its presentation during the Mediation process.

 

Controlling Law. This Agreement will be governed by and construed in accordance with the laws of the State of Connecticut.

 

Duplicate Originals. This agreement may be signed in duplicate original form.

 

 

Signatures. All signatories hereto represent that they are either authorized representatives signing in that capacity or that they are the principals and acknowledge that they have read and understand this entire agreement and that they do willingly sign either with the advice of counsel or having had ample opportunity to consult with counsel.

 

Accepted for William Simpson, Administrator of the Estate of John Simpson:

 

__________________________________ __________________

 

Date

 

Accepted for Third Party Plaintiff InsurerCo:

 

__________________________________ __________________

 

Date

 

Accepted for EquipCo of Connecticut, Inc:

 

__________________________________ __________________

 

Date

 

Accepted for Albert Henkens, Inc.:

 

__________________________________ __________________

 

Date

 

The following is a sample arbitration agreement. Since most DRI clients desire a final settlement, most of our arbitrations are based on contractual language rather than arbitration statutes. Accordingly, the decision under this language cannot be challenged in court absent a claim of either gross misconduct or material miscalculation by the arbitrator. If parties wish, however, the arbitration statues can be incorporated by reference to allow for motions to confirm or modify the award.