MEDIATION AGREEMENT

You have requested and I have agreed to serve as Mediator in your Family Law matter. This means, according to Section 1115(b) of the Evidence Code, that I will act as "a neutral person who conducts the mediation." This letter Agreement sets forth the terms of our basic rights and duties in mediation, within the bounds of the law as it now stands. When we sign this Agreement, it means we understand and accept the terms stated here, regardless of future changes in the law.

As of January 1, 1998, mediation law that previously reached across seven different California codes was repealed and amended, and then unified into a new Evidence Code chapter. This Evidence Code Chapter governs mediation as it is practiced in the Family Law area. This Agreement verifies that you accept those rules as applicable to your mediation, except as they are modified in this Agreement.

First and foremost, you agree by signing this letter that your mediation will be confidential. Confidentiality encourages full disclosure. By confidentiality, we mean that nothing you say during mediation and no document which is developed exclusively for mediation can later be admitted into evidence or used against you in any way during any trial or other court proceeding. Of course, any evidence that is otherwise admissible or subject to discovery outside of mediation shall not become protected simply because of its use during mediation. In other words, you waive none of your rights by agreeing to participate in mediation, to disclose the facts as you see them, and to discuss the legal issues that are raised by those facts. This holds true even if you do not settle all of the issues and later have to litigate any issue.

In order to preserve confidentiality but to tailor its scope for our mediation sessions, you first agree that I cannot be called as a witness at any hearing or proceeding, nor compelled to disclose the contents of my file or my notes at any time. Likewise, I cannot be compelled at any time to disclose the substance of a discussion or the contents of any proposed agreement or agreement in principle. Similarly, I will not share my file or my notes with either of you, to prevent any intentional or unwitting attempt to enter such items in evidence, and neither of you will record or broadcast the sessions.

In view of the confidentiality provisions, you promise to fully and honestly disclose all factual information you have or obtain prior to the conclusion of mediation which could be meaningful to the other party, or that s/he requests from you regardless of your assessment of its relevancy. This duty is set out in the Family Law Code which is applicable to all divorce and related proceedings: each party has "...the obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest and debts for which the community is or may be liable, and to provide equal access to all information, records, and books that pertain to the value and character of those assets and debts, upon request." (Family Code, §1100(e).) This duty extends to all documents under your control.

Under this letter agreement, there are two noteworthy exceptions to the scope of confidentiality. First, if you and your spouse reach a written agreement regarding any aspect of your case, then that written agreement will not be subject to the confidentiality protection of this Mediation Agreement. Your signature on that written agreement will constitute your waiver of confidentiality for that document only; your waiver of confidentiality will not extend to other documents nor to any mediation sessions. Your signature on this Agreement indicates that your assent to this term is in compliance with Section 1122 of the Evidence Code, which authorizes mediation participants to agree that an otherwise confidential document shall be admissible in evidence. For example, this Agreement is no longer confidential once signed by both of you.

Secondly, consultations with your own attorney or other professionals regarding the topics discussed during mediation are not violations of the confidentiality provisions of this Agreement. You have and retain the right to consult with an attorney and other professionals who represent you individually. You are permitted to disclose to your chosen professionals the content of discussions during our mediation sessions, including any and all proposals, tentative agreements and documents.

By agreeing to mediate in lieu of litigating, you are agreeing at the outset not to pursue remedies in court. In order to protect each of you from unintended adverse consequences, by signing this Agreement you each are also agreeing that, if requested, the two of you might agree or a court may properly render decisions and orders on all issues regarding what would otherwise be interim or temporary financial issues retroactive to the date this Agreement is signed, regardless of when your agreements or the court orders on such issues are finalized. For example, if you engage in mediation but are unable to reach an agreement regarding interim support and subsequently turn to litigation, then the court has the authority under the terms of this Agreement to impose a support order retroactively to the date both of you signed this Agreement. By agreeing to this term you have protection against someone who engages in mediation in bad faith.

This letter agreement also binds me to certain duties and obligations. As the Mediator, I agree that I will assist each of you in identifying all of the factual and legal information which you need in order to protect your own best interests as you from time to time assess them. I will assist each of you in framing your settlement proposals, and in evaluating and responding to the other party's offers. I will guide both of you through equitable and balanced discussions and negotiations toward a resolution of the legal issues which your case presents. But I have no decision-making power nor authority to render a binding decision on any dispute. Therefore, no "agreement" will be imposed on you; any agreement you enter into will be conditioned on your informed and voluntary consent.

I also promise that I do not and will not act as the attorney for either one of you (or both of you) at any time in this matter. This means that I will not take sides in this case, whether during the mediation sessions or after their conclusion. I agree not to represent either of you in this matter and against the other party, now or at any time in the future, even if the mediation does not lead to a complete agreement and you later turn to litigation.