CALIFORNIA ARTIBRATION & MEDIATION SERVICES, INC.

Transcription

1 CALIFORNIA ARTIBRATION & MEDIATION SERVICES, INC. C.A.M.S. Conflict Resolution Professionals Independent Conflict Resolution Professionals MEDIATION PROCESS AND ENGAGEMENT AGREEMENT The parties, indicated by the undersigned parties/counsel, have agreed to submit their dispute, entitled:, Case No: ; Venue: to mediation through the services of California Arbitration & Mediation Services, Inc. (hereinafter, C.A.M.S. ), as the independent Mediator. By executing below, the parties and all counsel acknowledge that C.A.M.S. is an association of independent Arbitrators and Mediators; that each arbitrator/mediator shall be paid directly for his/her services; that C.A.M.S. is merely the scheduling agency.. Each Arbitrator/ Mediator is independently insured. The following are the terms of the mediation proceedings to which the parties and attorneys (as applicable) consent: ALL CHECKS ARE TO BE MADE PAYABLE DIRECTLY TO THE INDEPENDENT MEDIATOR, Donald B. Cripe. 1. Mediation is a cooperative problem solving process using an impartial mediator to assist a couple to reach a mutually acceptable Mediated Marital Dissolution Settlement Agreement and dissolution of the marriage. to all issues. 2. All issues are negotiated in good faith. Therefore, it is essential that both parties share all information pertaining 3. In most cases, family law mediation can be completed in one session. However, on occasion a series of meetings may be held until agreement is reached on all issues. Most meetings are held with the mediator and both parties present. On occasion, sessions may be held with each of the parties separately, if deemed necessary by the mediator(s). 4. The issues to be negotiated usually include: division of assets, division of debts, spousal support, custody, visitation, and child support. 5. Cases in which Domestic Violence is a current issue or in which Restraining Orders are in effect, are probably not amenable to mediation on any except financial issues. MEDIATION AGREEMENT We agree to the following: 1. MEDIATION as used in this agreement includes, but is not limited to: preparation for mediation, i.e., reviewing pleadings, court files briefs, exhibits, etc., travel to and from the location of the mediation unless otherwise agreed, any reasonable service performed by C.A.M.S. and/or the mediator to advance the resolution of the matter. 2. To provide the mediator(s) the completed Income and Expense Statements and our Assets and Liabilities Statements/Property Declarations prior to the first mediation session. 3. To disclose all assets, debts, and other information that have a bearing on any of the issues in our mediation. 4. To obtain appraisals of our assets, and/or to consult with a tax specialist, if the mediator recommends that we do so. We understand that this would be at our own cost. 1

2 6. To engage the assistance of a mental health professional who is trained in both Mediation and Family Law issues for the purpose of child custody and visitation, if the Mediator recommends that we do so. We understand that this would be at our own cost. 6. If desired, to obtain review legal counsel, who, at a minimum, will review the final Mediated Marital Dissolution Settlement Agreement. If we choose not to engage or consult with counsel, we agree that we have done so of our own free choice and accept responsibility for the form and content of any final agreement or judgment. 7. That though the Mediators at California Arbitration & Mediation Services, Inc. (hereinafter C.A.M.S.) are licensed attorneys in California, neither C.A.M.S. nor the mediator will provide any legal advice to either or both parties, though the Mediator may provide an assessment of the settlement proposals in light of applicable law for information, only. However, if the Mediator believes that the mediation is proceeding in an imbalanced manner, the Mediator has the right to suspend the mediation pending a consultation between the parties and counsel of his or her choice. The parties may waive this provision only after being fully advised of his/her right to have his/ her own attorney advise him or her on the pertinent legal issues. 8. To keep confidential all statements made during the mediation, as well as all written, photographic, or printed materials prepared for or presented during this mediation, except that either party may share that information with his or her attorney. The provisions of California Evidence Code and apply to this mediation. THIS CONFIDENTIALITY AGREEMENT ("AGREEMENT") EXTENDS TO ALL PRESENT AND FUTURE CIVIL, JUDICIAL, QUASI-JUDICIAL, ARBITRATION, ADMINISTRATIVE OR OTHER PROCEEDINGS. 9. Not to subpoena any of our mediators, their records or any C.A.M.S. records. The parties acknowledge, understand and agree that a mediator is incompetent as a witness under California Evidence Code To either pay all filing fees as indicated by the Court or, if qualified, to request a fee waiver from the Court for filing and process fees. The Mediator will neither advance such fees nor will the Mediator assist in the preparation of any application for fee waivers. The parties must check with the Court to find out what the filing fees are at the time of the mediation. The parties also understand that it is generally the court rule that agreements by both parties will not be accepted by the courts unless both parties have paid (or receive waivers) he court s filing fee. 11. To respect each other s privacy and not intrude on each other s communications. 12. To abide by the California Family Code which generally provides that: a. You shall not do any of the following things: i. You may not hide earnings or community property from your spouse; you must make full disclosure of all assets and liabilities; and party; and ii. You may not take out a loan on the community property without the written consent of the other iii. If you, or either of you, have a retirement fund, IRA, 401k, deferred compensation plan or any other retirement/pension of any kind or nature which may be characterized, in whole or in part, as community property, you will not make any withdrawals or take any disbursements nor will you take any loan or other advances against such account before judgment or settlement without the written consent of the other party or a court order; iv. You may not sell the community property or give it away to someone, unless you have the written permission of your spouse or written permission from the Court. The law allows for situations in which you may need to transfer joint or community property as part of the everyday running of a business, 2

3 or that sometimes the sale of community property is necessary to meet necessities of life, such as food, shelter, or clothing, or court fees and attorney fees associated with this action. If this applies to you, you should see a lawyer for help, and v. Do not harass or bother your spouse or the children, and vi. Do not physically abuse or threaten your spouse or the children, and vii. Do not conceal the children of this relationship from the other party nor shall you interfere with the other party s custodial/visitation time without a court order; viii. Do not take the children, common to your marriage, out of the State of California for any reason, without a written agreement between you and your spouse or a Court Order, before you take the children out of the State. xiv. Do not remove or cause to be removed the other party or the children of the parties from any existing insurance coverage, including medical, hospital, dental, automobile and disability insurance. That both parties shall maintain all insurance coverage in full force and effect, unless and until entry of Judgment or otherwise allowed to do so by the Court. 13. The provisions of the above paragraphs are intended by the parties to be contractual and fully enforceable by the Court. If any of those provisions (i through xiv) are violated or breached and the other party is required to initiate an action with the Court to enforce those provisions, the losing party shall pay the actual attorneys fees and costs incurred by the prevailing party. (California Civil Code 1717) 14. Reservation Fee: There shall be a nonrefundable reservation fee of $ to be paid before any date can be promised by C.A.M.S. or the individual mediator. Such dates will be reserved only upon the receipt of the reservation fee by the mediator and the date shall be held for a maximum of ten (10) days pending receipt of the estimated fee deposit. Upon the expiration of that time if the full deposit has not been received, the date will be released and the reservation fee forfeited. The reservation fee is non-refundable, but if the mediation goes forward as scheduled, the $ will be credited to the first hour of mediation. If the reservation period expires, an additional $ reservation fee will be required unless the full amount of the minimum fee is received to secure the date. If the date is then cancelled by a party or the parties more than 72 business hours before the confirmed date, a cancellation fee will be deducted from the balance of the minimum fee upon refund. The parties understand that the mediator may begin preparation for the mediation several days in advance of the reserved date. In that event, the mediator shall account for the hours spent in preparation and is hereby granted permission to deduct the fee for the time expended from any return of the deposit. If the reserved date is confirmed by deposit of the entire minimum fee, the reservation fee will be credited against the minimum fee deposit. The entire minimum fee will be nonrefundable for Mediations cancelled 72 business hours or less before the confirmed date. No reserved date will be finally calendared until the full minimum fee has been received by the Mediator. 15. Deposit and Fee Agreement: Unless otherwise agreed in writing by the parties, the mediator s fee shall be divided equally between the parties at the rate of $ per hour. Time estimates are to include a four hour minimum. Any part of an hour shall be billed as a full hour. The minimum time that will be allocated for the Mediation shall be four hours or $1, and for which the parties must make advance payment before the mediation is calendared. Once the time is firmly reserved by receipt of the deposit, the deposit is agreed to have been earned on receipt and is then non-refundable unless the mediator can schedule another mediation to fill the reserved time period in 3

4 which case it shall be at the discretion of the mediator with the exception that a minimum of $ shall be retained to pay the administrative fee involved in calendaring the mediation. (See above for cancellation policies) To initiate the mediation session, each party to the mediation hearing shall provide a good faith estimate of the time necessary to mediate the case and send a sum calculated by multiplying the estimated time for mediation times the hourly rate to reserve the mediation appointment. In the event that the Mediation exceeds the estimate, the parties/counsel shall provide their estimate of time to complete and provide payment for the estimated time for completion before another session will be scheduled or the current session extended. If the parties request an C.A.M.S. mediator to travel more than five (5) miles to the location of one of the parties/attorneys for the convenience of the parties, travel time will be charged at the rate of $ per hour plus $.55 per mile. Travel time and mileage shall be estimated through the use of Map Quest or a similar internet based mapping tool and the travel time and mileage shall be added to the estimated time for mediation. However, travel time in excess of the estimate caused by traffic delays or other events beyond the control of the mediator, shall be billed to the parties at $ per hour. 16. Facility fee: The mediator may also charge a facility fee in the event that C.A.M.S. does not have an adequate facility at its disposal or if a specific location is needed for the convenience of the parties or to accommodate the mediation. The facility fee will depend upon what is charged by the facility to C.A.M.S. Since the fee charged will be for the purpose of reserving the facility and will be a pass through expense to be paid by counsel or the parties, neither C.A.M.S. nor the mediator will have any participation in securing a refund or applying the funds to another date at the same facility, so the facility fee may be nonrefundable and has to be paid by counsel or the parties at the time the facility is reserved. That fee shall be determined by the facility provider and shall be paid upon request. PLEASE MAKE PAYMENT ARRANGEMENTS BEFORE THE FIRST SESSION. IF THE CASE IS TAKEN OFF CALENDAR OR RESCHEDULED BY EITHER OR BOTH PARTIES, A RESCHEDULING FEE OF $300 WILL BE CHARGED TO THE PARTY REQUESTING THE CHANGE. No mediation session will be scheduled until the minimum is paid in advance. 17. The preparation of a relatively informal Settlement Agreement for is usually included in the Mediation Process and, if the parties are prepared and the mediation proceeds without complication, may be included in the estimated time. However, unless the parties agree to pay the C.A.M.S. or the mediator to prepare a formal, final Judgment, any agreement that may come from the Mediation is intended to be enforceable, but not in final Judgment form. The mediator or C.A.M.S. may have the facilities and personnel to prepare final agreements from any drafts prepared during the Mediation. Should the parties specifically request the mediator to prepare the final agreement, the parties shall jointly, or by other agreement between the parties, pay the mediator the sum of $ per hour for such services. The parties expressly agree that the preparation of the final judgment package by the Mediator is solely intended to be document preparation and shall not, for any purpose, be deemed to be the provision of legal services. However, if the parties and/or counsel expressly agree that the preparation of final agreements is clerical in nature only and that C.A.M.S. is not performing any legal services by doing so, C.A.M.S. will estimate the time necessary for the final preparation. Before preparation begins, the parties shall pay C.A.M.S. the estimated amount understanding that the estimate will be the minimum, only, and that if the preparation takes longer than the estimate (because of changes requested by the parties or otherwise out of the control of C.A.M.S.) the parties shall pay to C.A.M.S. the sum of $75.00 per hour or any portion of an hour, that C.A.M.S. personnel devotes to the completion of the document(s). C.A.M.S. will inform the clients in the event that preparation will take more than one hour beyond the original preparation time estimate. Before the final agreement package is given to the parties, the full amount due must be paid notwithstanding any other provision of this agreement. 4

5 18. That there is no guarantee of settlement. The parties are paying the C.A.M.S. solely for assistance in the process and while the mediator will exert his/her best efforts, mediation fees are earned upon receipt and that there shall be no refund if the mediation does not result in settlement, including in the event that the mediator declares a mediated settlement to be impractical or impossible for any reason. C.A.M.S. and the Mediator agree to the following: A. That the Mediator will be impartial but involved at all times during the mediation. B. That the Mediator will not represent or to be a witness for or against either party in any court action regarding this dissolution or any modification of its terms. C. That the Mediator will withdraw from mediation if it is not productive, or if either party breaches this agreement. D. That the C.A.M.S. will arrange to have papers filed in Court only at the direction of both parties. E. That neither C.A.M.S. nor the mediator will advance any filing, service or other fees on behalf of any party and that the parties will both probably have to file filing fees with the Court in order to have their judgment filed. F. That the Mediator will release papers from the C.A.M.S. files only at the direction of both parties. G. If engaged to prepare a final stipulated judgment, to do so in a form and with all collateral documents required to have judgment entered for the parties. 19. The C.A.M.S. mediator is serving as a neutral intermediary and settlement facilitator and may not act as an advocate for any party. THE MEDIATOR'S STATEMENTS DO NOT CONSTITUTE LEGAL ADVICE TO ANY PARTY. ACCORDINGLY, THE PARTIES ARE STRONGLY ENCOURAGED TO SEEK LEGAL ADVICE FROM THEIR OWN COUNSEL. If C.A.M.S. or the mediator assists in preparing a settlement agreement or judgment, each participant is advised to have the agreement independently reviewed by their own counsel before executing the agreement. MAKE ALL CHECKS PAYABLE DIRECTLY TO THE INDEPENDENT MEDIATOR. Executed on, 20. Print Print Signature Signature C.A.M.S. Mediator 5