Liberty-Ellington Law & Mediation, PLLC
204 N. Front St. Suite C
Dardanelle, AR 72834
(479) 747-3693 Phone
(479) 229-0361 Fax
Effective January 2021
I. Establishment of mediation relationship
The undersigned wish to retain the services of Liberty-Ellington Law & Mediation to mediate disputed issues. The Mediator is an attorney licensed to practice in the State of Arkansas. However, it this instance, she is acting as an impartial mediator with no legal relationship with either party.
II. Right of independent counsel
During the mediation, the parties may consult independent counsel at any time. Each party is entitled to the confidentiality of the attorney/client relationship in respect to any communication with any independent attorney. In particular, the parties should consult independent counsel prior to signing any final settlement agreement.
III. Mediator represents neither party
The parties acknowledge that the Mediator does not represent the interests of either party and is acting at all times as a neutral facilitator, not as an attorney for either party. The parties acknowledge that the purpose of Mediation is to facilitate the ultimate resolution and agreement between the parties regarding issues, problems, and disputes presented in Mediation and that the Mediator does not act as an advocate, representative, fiduciary, or counsel for either party.
IV. Impartiality of mediator
The parties acknowledge that, although the Mediator will be impartial and that the Mediator does not favor either party, there may be issues in which one party may be reasonable and the other may not be reasonable. The Mediator has the duty to assure a balanced dialogue and to diffuse any manipulative or intimidating tactics.
The Mediator agrees to keep all communication from either of the parties confidential in respect to any third persons, unless express verbal consent is given by both parties. For the purpose of facilitating communication and resolving differences between the parties, each party specifically authorizes the Mediator to meet individually with either party, and each party understands that such meetings are confidential and that the mediator has no duty to disclose the contents of those meetings to the other party. Therefore, the Mediator may meet with one party without the presence of the other, and any communication received in such individual sessions shall be confidential to the non-present party at the Mediator’s discretion. Such disclosure of communications is to preserve the neutrality of the Mediator.
The parties agree that any agreement signed by both parties shall be admissible in any legal proceeding. The parties further agree that neither party nor the mediator shall be required to testify in any legal proceeding as to mediation communication in respect to any issues, including communications related to the disclosure documents, and no documents prepared solely for mediation shall be admissible in any legal proceeding.
VII. Mediation ends
A mediation ends when any one of the following conditions is satisfied:
(1) the parties execute a written settlement agreement that fully resolves the dispute. (2) the mediator provides the mediation participants with a writing signed by the mediator that states the mediation is terminated, or words to that effect, or (3) a party provides the mediator and the other mediation participants with a writing stating that the mediation is terminated, or words to that effect.
For the purposes of confidentiality, if a mediation partially resolves a dispute, mediation ends when either of the following conditions is satisfied:
(1) the parties execute a written settlement agreement that partially resolves the dispute. This section does not preclude a party from ending a mediation without reaching an agreement. This section does not otherwise affect the extent to which a party may terminate a mediation.
VIII. Right of mediator to withdraw
The Mediator will attempt to resolve any outstanding disputes as long as both parties make a good faith effort to reach an agreement based on fairness to both parties. Both parties must be willing and able to participate in the process. A mediated agreement requires compromise, and both parties agree to attempt to be flexible and open to new possibilities for a resolution of the dispute. If the Mediator, in his professional judgment, concludes that agreement is not possible or that continuation of the mediation process would harm or prejudice one or both of the participants or that a conflict exists between either or both parties and the mediator, the Mediator shall withdrawal and the mediation shall conclude.
IX. Termination of mediation without cause
The Mediation may be terminated without cause by either party at any time. No reason needs to be given, either to the other party or to the Mediator. A decision to terminate Mediation must be made in writing. Mediation may not resume following said notification, unless expressly authorized by both parties.
Upon termination of mediation for any reason, the Mediator agrees not to represent either party against the other, in any court proceeding, adversary negotiation, or for any other reason involving a dispute between the parties.
X. Mediator shall not testify
Pursuant to Arkansas Code, the parties agree not to call or subpoena the Mediator to testify at any court proceeding nor to produce any document obtained or prepared from any Mediation session without the prior written authorization of both parties. If either party issues a subpoena regarding the Mediator or his or her documents, that party shall pay all reasonable attorney fees of the other party in respect to the response, compliance, or resistance of said subpoena.
XI. Mediator does not promise results
Each party acknowledges that, since Mediation is a process of compromise, it is possible that either party might agree to settle on terms that might be less favorable in comparison to what the party might have received from a Judge after a contested court hearing, or through negotiation in which one or both of the parties have retained legal counsel. The Mediator makes no representations that the ultimate result would be the same in kind or degree as might be concluded through negotiation or a contested trial on one or all of the issues. Any questions concerning fairness should be addressed to the Mediator as they occur. In addition, the spouses should consult with independent legal counsel to review compromises made during the course of Mediation, and all provisions of a final agreement prior to executing the Settlement Agreement and other court documents.
XII. Both parties are responsible for mediation fees
The parties hereby agree to be jointly and severally responsible for the fees of mediators and staff of Liberty-Ellington Law & Mediation, PLLC. The parties each agree to pay 50% of the mediation agreement unless specified by the order of the court. Each party is to tender payment for a ½ full-day mediation 3 days prior to the mediation session. The office deposits payments for services prior to rendering services. In the event, one party does not show up to the mediation session, the party shall forfeit ½ of their payment to Liberty-Ellington Law & Mediation, PLLC for a “no-show” fee as it is impossible to reschedule other appointments in the time set aside for the mediation session. The party that showed for the session is able to reschedule the mediation session. The non-showing party will need to remit an additional ½ of their payment before a new session is rescheduled. Sessions can be rescheduled at no charge if done so more than 48 hours prior to the mediation session. The parties agree that, in addition to the payment of any agreed upon fees, each of the parties shall be liable for any costs of collecting the total amount of the fee, including reasonable attorney fees for collecting said fees.
XIII. Execution of Mediator’s Agreement
By signing this Mediator’s Agreement, each party agrees that he or she has carefully read and considered each and every provision of this agreement and agree to each provision of this agreement without reservation. Before signing this agreement, each party has the right and is encouraged to have this agreement reviewed by an attorney.
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