Agreement to Mediate – PA-COLL/CLC/MM
State of North Carolina County of Mecklenburg
This is an agreement between , hereinafter “client”, and Charlotte Mediation Group, LLC d/b/a Carolina Divorce Mediators, LLC, hereinafter “mediator,” to enter into mediation and appoint Michael R. Musselman as mediator for negotiations.
The client and the mediator understand and agree as follows:
1. Mediation is an agreement-reaching process in which the mediator assists client in reaching a voluntary settlement of issues in a collaborative, consensual and informed manner. In furtherance of that goal, the client agrees to approach the issues with an open mind and listen to the comments of the other client and the mediator. The client acknowledges that the mediator will work to open the channels of communication, help clarify the client‘s needs and positions, and explore settlement options. The client further agrees to attempt to reach a settlement in good faith without having to litigate in court and understands that participating in mediation does not necessarily mean that a settlement will be reached.
2. The mediator has no power to decide disputed issues for the client and mediation is not a substitute for competent independent legal, financial, or other professional advice. The client is strongly encouraged to secure such advice throughout the mediation process and is strongly advised to obtain competent independent legal and financial review (including potential tax ramifications) of any agreement before signing that agreement. The client also understands and agrees that the mediator has an obligation to work as a trained neutral and cannot and will not render any legal, financial, or other advice to any client. Statements made by the mediator shall in no way be interpreted or acted upon as legal, financial, or any other type of advice.
3. The mediator must and will remain neutral and impartial throughout and after the mediation process. Thus, the mediator shall not champion the interests of any client over another in the mediation. The mediator may communicate separately with an individual mediating client, in which case such “caucus” shall not be confidential between the mediator and the individual mediating client unless they agree otherwise. The caucus shall permit candid discussion between the mediator and each individual client to share additional information and enhance the client’s and the mediator’s understanding of the issues.
4. The client agrees to fully and honestly disclose all relevant information and writings as requested by the mediator and all information requested by any other party of the mediation if the mediator determines that the disclosure is relevant to the mediation discussions. Specifically, client agrees to fully and accurately disclose all income, assets and liabilities. The client also agrees not to transfer or dispose of any real or personal property during the mediation process without the advance consent of the other party. Additionally, client agrees to refrain from any pre-emptive maneuvers and adversarial legal proceedings (except in the case of an emergency necessitating such action), while actively engaged in the mediation process.
5. The client acknowledges that either party has the right to terminate the mediation before an agreement is reached. Additionally, the mediator may terminate mediation under the following circumstances:
• The failure of a client to provide honest and accurate answers or information regarding assets, liabilities, income, and expenses;• The belief by the mediator that one client is taking unfair advantage of the other client;• The belief by the mediator that one client or both clients cannot adequately represent his or her respective interests;• The mediator’s belief that further mediation sessions would not be productive or worth the time and expense; and• Any other reason deemed appropriate by the mediator.
6. In order to create a climate of open and honest communications necessary for a successful mediation, the client agrees that all written and oral communications made in the course of mediation are confidential. The client agrees that all offers to compromise and all statements with regard to an offer to compromise by either client, their attorneys, or by the mediator during the mediation shall be deemed inadmissible as evidence pursuant to Rule 408 of the North Carolina Rules of Evidence. The client agrees that neither will call the mediator to testify concerning any mediation or any statements or admissions made during the course of mediation which are not otherwise discoverable through the legal process, including, but not limited to, notes, records, written and oral communications, draft resolutions, and work product of the mediator. In the event that either client contravenes this position, the mediator will move to quash the subpoena or summons and the client in breach shall pay all of the mediator’s fees and expenses for so doing. Facts that are otherwise discoverable are not made confidential because they are discussed during this mediation. Limitations to confidentiality are as follows:
• Except for information received by the mediator in caucus which has not been released by the client of the caucus, the mediator may discuss the mediation and provide any written or electronic documents containing information disclosed by the clients before, during, or after mediation with any of the client’s attorneys or any other third-party advisors or experts engaged by either of the clients;• The mediator may disclose to others information regarding the mediation with the written or electronic message (email) consent of either client;• The mediator will disclose otherwise confidential information where required by law (e.g., where the mediator suspects child abuse or neglect or where the information suggests an actual or potential threat to any person’s life or safety) or where the mediator is so ordered to do so by judicial authority.
• The client shall be jointly (with the other party) and individually liable for the mediator’s fees and expenses and agrees to be prepared to tender fees at the end of each mediation session. The client and the mediator agree that the fee for the mediator shall be $140.00 per hour for time spent with the client and is payable at the end of each mediation session. The client also agrees to be individually and collectively responsible for a minimum of two hours of the mediator’s time at the above stated rate for any individual session for any appointment in which either client does not attend and does not provide at least 72 hours advance notice of cancellation.• There is a one-time charge of $440.00 payable at the end of the first mediation session to cover the drafting of all documents including the Memorandum of Understanding and any revisions relating thereto that are requested by the clients within 45 days of the mediator’s delivery of the first draft. This one-time fee is non-refundable if the mediation process is terminated early by the mediator or any client. No fees are charged for phone conferences, faxes, or electronic mail with the client and his or her attorney. • Should payment not be timely made, the mediator may, at his sole discretion, stop all work on behalf of the client, including the drafting and/or distribution of the client’s Memorandum of Understanding, and withdraw from the mediation. If collection or court action is taken by the mediator to collect fees and/or expenses under this agreement, the client agrees to pay all of the mediator’s fees associated with bringing such action.• The client agrees to arrive on-time for all appointments as hourly fees commence at the time the appointment is scheduled to begin.
8. Memorandum of Understanding – The client agrees that the Memorandum of Understanding only reflects points of agreement reached in mediation and is not a legally-binding document in any form. Client agrees to not alter the Memorandum or any of the mediator’s work product for any reason including, but not limited to, attempting to make the Memorandum a legally binding agreement. The client further agrees to engage the services of a competent attorney who will use the Memorandum to author a separate separation agreement producing the only document that contracts them to their legally-binding settlement.
9. The client hereby releases, waives, and forever discharges Michael R. Musselman, Scott R. Hardy, and the firm of Charlotte Mediation Group, LLC d/b/a Carolina Divorce Mediators, LLC from any liability to any of them as a result of their actions, or lack of action with regard to the mediation process being undertaken in this agreement by the client.
10. There are no verbal agreements between the client and the mediator modifying or expanding the terms of this agreement. Any future modifications shall be in writing and signed by all clients.
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Signed by Carolina Divorce Mediators, LLC Signed On: August 24, 2018
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Document Name: Agreement to Mediate – PA-COLL/CLC/MM
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