MEDIATION AGREEMENT

Attorneys, parties and participants scheduling and / or convening for mediation with David Henn and / or Henn Mediation LLC (Mediator) agree to the following:

1. DEFINITION OF MEDIATION. Mediation is a process in which a neutral third person, called a mediator, acts to encourage and to assist in the resolution of a dispute between two (2) or more parties. This is an informal and non-adversarial process. The objective is to help the disputing parties reach a mutually acceptable agreement between or among themselves on all or any part of the issues in dispute. Decision-making authority rests with the parties, not the mediator. The Mediator assists the parties in identifying issues, fostering joint problem-solving, exploring settlement alternatives, and in other ways consistent with these activities.

2. AGREEMENT OF PARTIES. Mediation shall be conducted in accord with the Indiana Rules for Alternative Dispute Resolution. Whenever a court orders parties to participate in mediation, or the parties have agreed to mediation, they shall be deemed to have made these rules and Agreement, as amended and in effect as of the date of the submission of the dispute, as part of their agreement to mediate.

3. CONSENT TO MEDIATOR. The parties consent to the appointment of the individual named as the Mediator in their case. The Mediator shall act to promote resolution and shall use his best efforts to assist the parties in reaching a mutually acceptable settlement. The Mediator does not warrant or guarantee any resolution or particular outcome of mediation.

4. NO LEGAL ADVICE; NEUTRALITY. The Mediator represents no participant in mediation. The Mediator provides no legal advice to any participant. The Mediator shall not serve as a mediator in any dispute in which he has any financial or personal interest in the result of the mediation. Prior to accepting an appointment, the Mediator shall disclose any circumstances likely to create a presumption of bias.

5. AUTHORITY OF MEDIATOR. The Mediator does not have the authority to decide any issue for the parties but will attempt to facilitate the voluntary resolution of the dispute by the parties. The Mediator is authorized to conduct joint and separate meetings with the parties and to offer suggestions to assist the parties in achieving settlement. If necessary, the Mediator may also obtain expert advice concerning technical aspects of the dispute, provided that the parties agree and assume the expenses of obtaining such advice. Arrangements for obtaining such advice shall be made by the Mediator or the parties, as the Mediator shall determine.

6. MEDIATOR CANNOT IMPOSE SETTLEMENT. The parties understand that the Mediator will not and cannot impose a settlement or other resolution in their case and agree that a settlement or other resolution, if any, must be voluntarily agreed to by the parties. The Mediator will use every effort to facilitate the negotiations. The Mediator does not warrant, guarantee or represent that settlement or other resolution will result from the mediation process.

7. AUTHORITY OF REPRESENTATIVES. PARTY REPRESENTATIVES MUST HAVE AUTHORITY TO SETTLE AND ALL PERSONS NECESSARY TO THE DECISION TO SETTLE SHALL BE PRESENT FOR THE ENTIRE MEDIATION. The names of such persons shall be communicated to all parties and to the Mediator.

8. TIME AND PLACE OF MEDIATION. After consultation with the participants, the Mediator shall fix the date, time and mode of each mediation session.

9. IDENTIFICATION OF MATTERS IN DISPUTE. Prior to the first scheduled mediation session, each party shall provide the Mediator with a Confidential Mediation Statement not to exceed ten (10) pages which shall include:

(1)     the legal and factual contentions of the respective parties as to both liability and damages;

(2)    the factors considered in arriving at the current settlement posture; and

(3)    the status of the settlement negotiations to date.

A confidential statement of the case may be supplemented by damage brochures, videos, and other exhibits or evidence. The confidential statement of the case shall at all times be held privileged and confidential from other parties unless agreement to the contrary is provided to the mediator.

10. PRIVACY. Mediation sessions are private. Only the parties and their representatives may attend mediation sessions. Other persons may attend, participate or be consulted during mediation (regardless of whether in-person or electronically including by phone, text, email, Zoom or other means) only with the permission of the parties and with the consent of the Mediator. The Mediator may exclude any such other person from the mediation at any time for any reason.

11. CONFIDENTIALITY. It is the responsibility of mediation participants to expressly identify to Mediator any information or material provided to Mediator that Mediator is to keep confidential. IN THE ABSENCE OF SUCH EXPRESS SPECIFICATION BY A PARTY, OTHER THAN INFORMATION PROVIDED WITHIN A CONFIDENTIAL MEDIATION STATEMENT, MEDIATOR MAY DISCLOSE ANY INFORMATION TO MEDIATION PARTICIPANTS WITHIN MEDIATOR’S SOLE DISCRETION. 

Information or materials specified as confidential that participants disclose to the Mediator during the course of mediation shall not be divulged by the Mediator to the other participants. The Mediator shall not be compelled to divulge such information or records, or to testify in regard to the mediation in any adversary proceeding or judicial forum. Any party seeking to compel the Mediator to disclose such information or records shall pay all fees and expenses of the Mediator, including reasonable attorney’s fees, incurred by the Mediator in the proceedings to compel testimony or records from the Mediator.

The parties shall maintain the confidentiality of the mediation and shall not rely on or introduce as evidence in any arbitral, judicial, or other proceeding:

a. Views expressed or suggestions made by another party with respect to a possible settlement of the dispute

b. Admissions made by another party in the course of the mediation proceedings

c. Proposals made or views expressed by the Mediator, or

d. The fact that another party had or had not indicated a willingness to accept a proposal for settlement made by the Mediator.

12. NO RECORD. There shall be no record of the mediation process and no person shall record any portion of the mediation via any means.

13. TERMINATION OF THE MEDIATION. The mediation shall be terminated:

a. By the execution of the Mediation Settlement Agreement by the parties

b. By declaration of the Mediator to the effect that further efforts at mediation are no longer worthwhile, or

c. After the completion of one full mediation session, by a written declaration of a party or parties to the effect that the mediation sessions are terminated.

14. EXCLUSION OF LIABILITY. Pursuant to Indiana Alternative Dispute Resolution Rule 1.5, mediation participants and other persons participating in the mediation process in any way acknowledge and agree that Mediator shall have immunity in the same manner and to the same extent as a judge in the State of Indiana. Any person bringing legal action against Mediator shall pay all fees and expenses of the Mediator, including reasonable attorney’s fees and court costs, incurred by Mediator in the legal action.

15. INDIANA RULE OF ALTERNATIVE DISPUTE RESOLUTION 2.7(A) ADVISEMENT. All participants and other persons are advised that Mediator shall:

(1)     advise the parties of all persons whose presence at mediation might facilitate settlement; and

(2)    in child related matters, ensure that the parties consider fully the best interests of the children and that the parties understand the consequences of any decision they reach concerning the children; and

(3)    inform all parties that the mediator (a) is not providing legal advice, (b) does not represent either party, (c) cannot determine how the court would apply the law or rule in the parties’ case, or what the outcome of the case would be if the dispute were to go before the court, and (d) recommends that the parties seek or consult with their own legal counsel if they desire, or believe they need legal advice; and

(4)    explain the difference between a mediator’s role and a lawyer’s role when a mediator knows or reasonably should know that a party does not understand the mediator’s role in the matter; and

(5)    not advise any party (i) what that party should do in the specific case, or (ii) whether a party should accept an offer; and

(6)    advise a party who self-identifies or who the mediator identifies as a victim after screening for domestic or family violence, also known as intimate partner violence or abuse, or coercive control (hereinafter, “domestic violence”) that the party will only be required to be present at mediation sessions in accordance with Rule 2.7(B)(1).

16. MEDIATION FEES AND EXPENSES. Mediator assesses a flat fee, per separate party, based upon a half-day or full-day mediation setting. Half-day or full-day flat fees shall not be reduced or pro-rated should mediation conclude or terminate early. Full-day flat fees shall be assessed in any half-day mediation that exceeds 4 hours. The flat fee covers one mediation session; subsequent mediation sessions incur an additional flat fee. By scheduling with Mediator, or by convening for mediation with Mediator, attorneys and participants agree to pay Mediator in accord with Mediator’s fee schedule in effect at the time of scheduling. 

Attorneys representing participants acknowledge and agree that the attorneys shall be responsible for payment of Mediator’s fee. If attorneys intend to instruct their clients to pay Mediator’s fee directly, then the clients must pay Mediator’s fee no less than ten (10) days prior to the scheduled mediation. 

Pro se participants (participants not represented by an attorney) must pay Mediator’s fee in advance of the scheduled mediation session, no less than ten (10) days prior to the scheduled mediation.

Mediator does not assess administrative fees. Mediator does not assess charges for cancellations or to reschedule mediation. Mediator does not assess travel expenses or other expenses incurred for mediations that convene within the State of Indiana. The flat fee schedule does not apply to mediations that convene in-person outside the State of Indiana or to mediations involving pro se (unrepresented) parties.

Pursuant to Indiana Alternative Dispute Resolution Rule 2.6, unless otherwise agreed, the parties shall pay their mediation costs within thirty (30) days after the close of each mediation session. Mediator may recover all costs of collection of any unpaid mediation fee, including reasonable attorney fees and pre-judgment interest.

Participants may review Mediator’s fee schedule at https://settleitnow.com/fees