AGREEMENT REGARDING MEDIATION AND CONFIDENTIALITY

Declaration of Intent

The parties wish to settle the dispute existing between themselves, and have agreed to seek the assistance of J. JUSTIN RIPLEY, a mediator they each believe has no reason to be other than impartial toward their individual positions. The parties agree that in order to reach resolution the utmost candor and the fullest, unguarded disclosure may be made to the mediator, who, in turn, may be required to test the parties' assertions with argument, hypothesis, and opinion in order to facilitate the process. Because of this, all parties agree that the mediator has no liability for any act or omission in connection with the mediation, and further agree to the concepts stated below.

Mediator Neutrality

The mediator is a neutral intermediary who does not act as an advocate for any party. His opinions or statements shall not be taken as legal, financial or other advice. He has no authority to order, direct or bind any mediation participant. Any reference to the mediator as "Judge" or by similar designation is wholly honorary. His role is only to facilitate negotiations among the parties.

Confidentiality

The parties agree that the following five paragraphs control regardless of the law of the forum.

  1. All statements made during the course of the mediation are privileged settlement discussions, are made without prejudice to any party's legal position, and are non-discoverable and inadmissible for any purpose in any judicial, arbitral, administrative or other proceeding. The privileged character of any information is not altered by disclosure to the mediator.
  2. The mediator shall have the same complete common law immunity as judges have from suit for damages or equitable relief and from compulsory process to testify or produce evidence based on or concerning any action, statement or communication in or concerning the mediation conducted pursuant to this agreement. Disclosure of any records, reports, notes or other dateuments received or prepared by the mediator cannot be compelled.
  3. The parties will disclose sensitive information in reliance upon this agreement of confidentiality. Any breach of this agreement will cause irreparable injury for which monetary damages are inadequate. Any party to this agreement, or the mediator, an intended beneficiary thereof, may obtain an injunction to prevent disclosure of any such confidential information.
  4. Any party breaching this agreement shall be liable for and shall indemnify the non-breaching parties and the mediator for all costs, expenses, liabilities, and fees, including full attorneys' fees, which may be incurred as a result of such breach. In addition, the party bringing any application, claim or action requiring the mediator to oppose or defend in any forum shall pay to the mediator daily, in advance, his estimated legal fees and costs, as well as for his lost productivity, computed at the mediator's current hourly conference rate.
  5. The mediator reserves the right to disclose confidential information to others if the mediator determines, in his exclusive judgment, that the disclosure is necessary to prevent physical injury to a human being.
Parties' Expectations

Any agreement resulting from this mediation may, in fact, be less advantageous than the result obtained through litigation or other procedures. Recognizing this, each party agrees to release the mediator, and hereby does release the mediator, specifically, from the claim that a better result might have been obtained elsewhere.

Execution

This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same agreement.

Enforcement

Unless it is to be treated by all the parties as another, separate mediation, the mediator will be requested to take no action to enforce the terms of any agreement reached by the parties to the mediation.

Fees

Execution hereof warrants that:

  1. The parties have read and understand the mediator's fee schedule and requirements, particularly the seven (7) day cancellation charge of $1200.
  2. Funds sufficient to satisfy the anticipated billings have been deposited with counsel, or are otherwise segregated for immediate payment of billings upon submission.
  3. Terms: net upon invoice.
  4. Interest at 1 1/2% per month, compounded, will be applied to any unpaid balance.
  5. Service upon, or notice to, counsel herein shall be sufficient for all purposes if collection action is required.
  6. Should any party hereto not be represented by counsel, the service or notice referred to in paragraph 5, above, will be sufficient if mailed first class U. S. mail to that party's address as it appears on the signature page of the Mediation and Confidentiality Agreement.


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