Online Mediation and Arbitration

CPR MEDIATION PROCEDURE

1. Agreement to Mediate
2. Selecting the Mediator
3. Ground Rules of Proceeding
4. Exchange of Information
5. Presentation to the Mediator
6. Negotiations
7. Settlement
8. Failure to Agree
9. Confidentiality
10. Form 1: Model Agreement for Parties and Mediator

1. Agreement to Mediate [edit]

The CPR Mediation Procedure (the “Procedure”) may be adopted by agreement of
the parties, with or without modification, before or after a dispute has arisen. The
following provisions are suggested:

A. Pre-dispute Clause

The parties shall attempt in good faith to resolve any dispute arising out of or
relating to this Agreement promptly by confidential mediation under the [then
current] CPR Mediation Procedure [in effect on the date of this Agreement],
before resorting to arbitration or litigation.

B. Existing Dispute Submission Agreement
We hereby agree to submit to confidential mediation under the CPR Mediation
Procedure the following controversy:

(Describe briefly)

2. Selecting the Mediator

Unless the parties agree otherwise, the mediator shall be selected from the CPR Panels
of Neutrals. If the parties cannot agree promptly on a mediator, they will notify CPR
of their need for assistance in selecting a mediator, informing CPR of any preferences
as to matters such as candidates’ mediation style, subject matter expertise and geographic
location. CPR will submit to the parties the names of not less than three candidates,
with their resumes and hourly rates. If the parties are unable to agree on a
candidate from the list within seven days following receipt of the list, each party will,
within 15 days following receipt of the list, send to CPR the list of candidates ranked
in descending order of preference. The candidate with the lowest combined score
will be appointed as the mediator by CPR. CPR will break any tie.

Before proposing any mediator candidate, CPR will request the candidate to disclose
any circumstances known to him or her that would cause reasonable doubt
regarding the candidate’s impartiality. If a clear conflict is disclosed, the individual will
not be proposed. Other circumstances a candidate discloses to CPR will be disclosed
to the parties. A party may challenge a mediator candidate if it knows of any circumstances
giving rise to reasonable doubt regarding the candidate’s impartiality.

The mediator’s rate of compensation will be determined before appointment.
Such compensation, and any other costs of the process, will be shared equally by
the parties unless they otherwise agree. If a party withdraws from a multiparty
mediation but the procedure continues, the withdrawing party will not be responsible
for any costs incurred after it has notified the mediator and the other parties
of its withdrawal.

Before appointment, the mediator will assure the parties of his or her availability
to conduct the proceeding expeditiously. It is strongly advised that the parties
and the mediator enter into a retention agreement. A model agreement is attached
hereto as a Form.

3. Ground Rules of Proceeding

The following ground rules will apply, subject to any changes on which the parties
and the mediator agree.

a. The process is non-binding.
b. Each party may withdraw at any time after attending the first session, and
before execution of a written settlement agreement, by written notice to the
mediator and the other party or parties.
c. The mediator shall be neutral and impartial.
d. The mediator shall control the procedural aspects of the mediation. The parties
will cooperate fully with the mediator.

i. The mediator is free to meet and communicate separately with each party.
ii. The mediator will decide when to hold joint meetings with the parties and
when to hold separate meetings. The mediator will fix the time and place
of each session and its agenda in consultation with the parties. There will
be no stenographic record of any meeting. Formal rules of evidence or procedure
will not apply.

e. Each party will be represented at each mediation conference by a business
executive or other person authorized to negotiate a resolution of the dispute,
unless excused by the mediator as to a particular conference. Each party may
be represented by more than one person, e.g. a business executive and an
attorney. The mediator may limit the number of persons representing each
party.
f. Each party will be represented by counsel to advise it in the mediation,
whether or not such counsel is present at mediation conferences.
g.The process will be conducted expeditiously. Each representative will make
every effort to be available for meetings.
h.The mediator will not transmit information received in confidence from any
party to any other party or any third party unless authorized to do so by the
party transmitting the information, or unless ordered to do so by a court of
competent jurisdiction.
i. Unless the parties agree otherwise, they will refrain from pursuing litigation or
any administrative or judicial remedies during the mediation process or for a set
period of time, insofar as they can do so without prejudicing their legal rights.
j. Unless all parties and the mediator otherwise agree in writing, the mediator
and any persons assisting the mediator will be disqualified as a witness, consultant
or expert in any pending or future investigation, action or proceeding
relating to the subject matter of the mediation (including any investigation,
action or proceeding which involves persons not party to this mediation).
k. If the dispute goes into arbitration, the mediator shall not serve as an arbitrator,
unless the parties and the mediator otherwise agree in writing.
l. The mediator may obtain assistance and independent expert advice, with the
prior agreement of and at the expense of the parties. Any person proposed as
an independent expert also will be required to disclose any circumstances
known to him or her that would cause reasonable doubt regarding the candidate’s
impartiality.
m. Neither CPR nor the mediator shall be liable for any act or omission in connection
with the mediation, except for its/his/her own willful misconduct.
n. The mediator may withdraw at any time by written notice to the parties (i) for
serious personal reasons, (ii) if the mediator believes that a party is not acting
in good faith, or (iii) if the mediator concludes that further mediation efforts
would not be useful. If the mediator withdraws pursuant to (i) or (ii), he or
she need not state the reason for withdrawal.

4. Exchange of Information

If any party has a substantial need for documents or other material in the possession
of another party, or for other discovery that may facilitate a settlement, the parties
shall attempt to agree thereon. Should they fail to agree, either party may
request a joint consultation with the mediator who shall assist the parties in reaching
agreement.

The parties shall exchange with each other, with a copy to the mediator, the
names and job titles of all individuals who will attend the joint mediation session.

At the conclusion of the mediation process, upon the request of a party which
provided documents or other material to one or more other parties, the recipients
shall return the same to the originating party without retaining copies.

5. Presentation to the Mediator

Before dealing with the substance of the dispute, the parties and the mediator will
discuss preliminary matters, such as possible modification of the procedure, place
and time of meetings, and each party’s need for documents or other information in
the possession of the other.


At least 10 business days before the first substantive mediation conference,
unless otherwise agreed, each party will submit to the mediator a written statement
summarizing the background and present status of the dispute, including any settlement
efforts that have occurred, and such other material and information as the
mediator requests or the party deems helpful to familiarize the mediator with the
dispute. It is desirable for the submission to include an analysis of the party’s real
interests and needs and of its litigation risks. The parties may agree to submit jointly
certain records and other materials. The mediator may request any party to provide
clarification and additional information.

The parties are encouraged to discuss the exchange of all or certain materials
they submit to the mediator to further each party’s understanding of the other
party’s viewpoints. The mediator may request the parties to submit a joint statement
of facts. Except as the parties otherwise agree, the mediator shall keep confidential
any written materials or information that are submitted to him or her. The parties
and their representatives are not entitled to receive or review any materials or information
submitted to the mediator by another party or representative without the
concurrence of the latter. At the conclusion of the mediation process, upon request
of a party, the mediator will return to that party all written materials and information
which that party had provided to the mediator without retaining copies thereof
or certify as to the destruction of such materials.

At the first substantive mediation conference each party will make an opening
statement.

6. Negotiations

The mediator may facilitate settlement in any manner the mediator believes is
appropriate. The mediator will help the parties focus on their underlying interests
and concerns, explore resolution alternatives and develop settlement options. The
mediator will decide when to hold joint meetings, and when to confer separately
with each party.

The parties are expected to initiate and convey to the mediator proposals for settlement.
Each party shall provide a rationale for any settlement terms proposed.

Finally, if the parties fail to develop mutually acceptable settlement terms, before
terminating the procedure, and only with the consent of the parties, (a) the mediator
may submit to the parties a final settlement proposal; and (b) if the mediator
believes he/she is qualified to do so, the mediator may give the parties an evaluation
(which if all parties choose, and the mediator agrees, may be in writing) of the
likely outcome of the case if it were tried to final judgment, subject to any limitations
under any applicable mediation statutes/rules, court rules or ethical codes.

Thereupon, the mediator may suggest further discussions to explore whether the
mediator’s evaluation or proposal may lead to a resolution.

Efforts to reach a settlement will continue until (a) a written settlement is
reached, or (b) the mediator concludes and informs the parties that further efforts
would not be useful, or (c) one of the parties or the mediator withdraws from the
process. However, if there are more than two parties, the remaining parties may
elect to continue following the withdrawal of a party.

7. Settlement

If a settlement is reached, a preliminary memorandum of understanding or term
sheet normally will be prepared and signed or initialed before the parties separate.
Thereafter, unless the mediator undertakes to do so, representatives of the parties
will promptly draft a written settlement document incorporating all settlement
terms. This draft will be circulated, amended as necessary, and formally executed.
If litigation is pending, the settlement may provide that the parties will request dismissal
of the case. The parties also may request the court to enter the settlement
agreement as a consent judgment.

8. Failure to Agree

If a resolution is not reached, the mediator will discuss with the parties the possibility
of their agreeing on advisory or binding arbitration, “last offer” arbitration or
another form of ADR. If the parties agree in principle, the mediator may offer to
assist them in structuring a procedure designed to result in a prompt, economical
process. The mediator will not serve as arbitrator, unless all parties agree.

9. Confidentiality

The entire mediation process is confidential. Unless agreed among all the parties or
required to do so by law, the parties and the mediator shall not disclose to any person
who is not associated with participants in the process, including any judicial
officer, any information regarding the process (including pre-process exchanges
and agreements), contents (including written and oral information), settlement
terms or outcome of the proceeding. If litigation is pending, the participants may,
however, advise the court of the schedule and overall status of the mediation for
purposes of litigation management. Any written settlement agreement resulting
from the mediation may be disclosed for purposes of enforcement.

Under this procedure, the entire process is a compromise negotiation subject to
Federal Rule of Evidence 408 and all state counterparts, together with any applicable statute protecting the confidentiality of mediation. All offers, promises, conduct and statements, whether oral or written, made in the course of the proceeding by
any of the parties, their agents, employees, experts and attorneys, and by the mediator
are confidential. Such offers, promises, conduct and statements are privileged
under any applicable mediation privilege and are inadmissible and not discoverable
for any purpose, including impeachment, in litigation between the parties.
However, evidence that is otherwise admissible or discoverable shall not be rendered
inadmissible or non-discoverable solely as a result of its presentation or use
during the mediation.

The exchange of any tangible material shall be without prejudice to any claim
that such material is privileged or protected as work-product within the meaning of
Federal Rule of Civil Procedure 26 and all state and local counterparts.

The mediator and any documents and information in the mediator’s possession
will not be subpoenaed in any such investigation, action or proceeding, and all parties
will oppose any effort to have the mediator or documents subpoenaed. The
mediator will promptly advise the parties of any attempt to compel him/her to
divulge information received in mediation.