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Mediation & Fee Contract
Please read this Agreement carefully before signing it. It is a legally binding contract.
By: Steven R. Sugarman
Mediator and Attorney
We are requesting mediation services from Steven R. Sugarman, Esq., and agree to be bound by the following contractual provisions and
conditions:
- This mediation is voluntary. Either of us may choose to end it at any time.
- We will make all of the decisions; the mediator cannot impose any decision upon us.
- We understand that the mediator is in charge of the mediation. He will give us each equal time as much as possible during
the process. He will not take sides and will attempt to guide us to a reasonable and realistic agreement.
- Each of us is encouraged to seek advice, whenever desired, from professionals such as attorneys, accountants and/or psychologists
at any time during the mediation; however, each of us accepts full responsibility for the reasonable accuracy of all information
provided by such advisors, which is used in the mediation process.
- Each of us understands that the mediator is not acting as our attorney. He is not representing either one of us or both
of us. The mediator cannot provide legal advice to either party, but rather, only legal information.
- We will each fully disclose and document all of our financial income, assets, debts and liabilities during the mediation.
- Mediation sessions are totally confidential.
- We will not subpoena the mediator or his files in any legal action or proceeding. Should any party attempt, either successfully
or unsuccessfully, to subpoena the mediator to any legal action, proceeding or deposition (or in any way involve the mediator in
any other type of discovery proceeding) in the future which in any way relates to this mediation, such party shall pay the mediator’s
normal hourly fees involved in his attempts to challenge such subpoena (including but not limited to the time involved in filing,
arguing and finalizing a Motion or Order to Show Cause, travel time to and from court, waiting time in court, receiving and making
telephone calls and drafting and receiving letters involving such matters), and in the event such challenge is defeated, such party
shall pay all of the mediator’s normal hourly fees involved in his going to court, waiting in court, testifying, conferencing and
all other related time related to such matter (including but not limited to travel time to and from court, telephone calls and
letters involving such matters). Such party shall also pay for the mediator’s normal hourly fees for any appeal involved in such
matters.
- We both want the freedom to state what we want in the context of the mediation without the other party using any of our statements
against us in any legal action or proceeding in the future. Accordingly, we both agree that all statements that we make in
discussions which occur in the mediation process are to be termed “settlement negotiations” and inadmissible as evidence
in any Court or other tribunal. In addition, any statement made by either party is made without prejudice and on the express
condition that it may not be used in any manner in any litigation.
- The mediator will not disclose any information concerning us to a third party without prior consent. However, in the event
that the mediator discovers that a child or children of a party or the parties is, in the mediator’s considered opinion,
clearly being abused, the parties understand that the mediator will report such abuse to Child Protective Services of the New York
State Department of Social Services. Furthermore, the confidentiality of the parties’ communications to the mediator
may be breached if, in the mediator’s considered opinion, such breech is necessary to protect the safety of any person.
- We each consent to our mediator contacting our respective lawyers, accountants, counselors, or other professionals if necessary
at any time or to respond to such contact, and to release any information given by such professional to that professional’s
client only.
- Furthermore, in the event that the parties have jointly utilized the services of a neutral expert in the context of the mediation,
such as an accountant or a psychologist, the parties agree that all of such expert’s notes, work product, summaries, reports
and anything else in their files are confidential. The parties also agree that they shall not subpoena such expert or their
aforesaid paper work or files in any legal action or proceeding. All statements by the expert(s) or to the expert(s) by the
parties or the mediator shall be deemed confidential, not to be disclosed to any Court or other tribunal or in any other context,
whether by subpoena or otherwise. The terms of this paragraph may be waived by the express written consent of both parties;
however, even in such event, such expert shall not serve as the expert of either party in such future litigation, but rather only
as a neutral expert of the Court.
- At the conclusion of the sessions, the mediator will prepare a written, proposed Separation or Divorce Agreement setting forth
our agreements. We will each receive a copy of the proposed agreement.
- The mediator recommends that we each have a separate, independent attorney to advise us through the mediation process. In
addition, the mediator requires that each party have a separate, independent attorney review the proposed Separation Agreement
before it is signed.
- We understand that if the Separation Agreement prepared by the mediator is signed by both of us, this does not make us divorced;
however, if the Agreement is signed and we are not living together we will be legally separated. We understand that in order
to get a divorce, one of us must initiate a legal action against the other; however, the terms of the Separation Agreement can
serve as the terms of the divorce. Furthermore, we both understand that if we sign a Separation Agreement and live apart
for one full year pursuant to the terms of such Agreement, either of us may have sufficient grounds to institute a divorce action.
- We both understand that the mediator shall prematurely terminate the mediation process and be due all fees owed him by the parties
up to that point in time if, in the mediator’s considered opinion:
- The participants insist on an agreement which is unconscionable.
- The participants insist on an agreement which is clearly opposed to the best interests of the children.
- Either or both of the participants continues to conceal financial or other relevant information from the other participant
or from the mediator.
- Either or both of the participants continually manifest an unwillingness or an inability to participate in the process in a
meaningful manner.
- Either party is a victim of domestic violence which makes it unlikely that a party can voluntarily enter an agreement free
of duress or other pressures.
FEES
The mediation fee is $250.00 per hour for all services
that I perform. I have found that it saves me time and my clients’ money to delegate certain administrative activities
to my paralegal; thus, any services conducted by my paralegal will be billed at the rate of $85.00 per hour. The parties realize
that the aforesaid hourly rates are applicable for 12 months from the date of the signing of this Mediation Contract, at which time
the hourly fees may be adjusted.
The parties fully understand that the hourly rates
apply to all time expended relative to the mediation, including but not limited to, office meetings and conferences, telephone calls
and conferences, either placed by or placed to you or otherwise made or had on your behalf or related to your matter, preparation,
review and revision of correspondence, financial information, reports, memoranda, and all other documents and papers relative to your
matter, legal research, file review, meetings with professionals such as experts or your attorneys (with your consent in advance),
travel time (if applicable) and any other time expended on behalf of or in connection with the mediation and the drafting of and finalization
of a written agreement.
Please be advised that the time for chargeable
services which either I or my paralegal renders is billed in tenths of an hour and is computed by rounding the time for each day’s
activities to the next highest tenth of an hour. Each letter or document that is drafted will be billed at a minimum of .3 hours. You
will also be billed a minimum of .1 hours for receiving and reviewing any correspondence or documentation; and, every telephone conversation
will be billed at a minimum of .1 hours. These amounts have been arrived at as a result of calculating the time involved in retrieving
the file and examining the documents or letters required to dictate the letter or respond to the call, in addition to the time required
to consider the problem arising from or to be dealt with in the call or letter.
In order for me to begin the mediation process,
you have agreed to pay $__________ as an initial retainer payment. This retainer payment does not necessarily represent the amount
of the overall fee that you may incur by virtue of our services. The amount of my eventual fee will be based upon our regular
schedule of established time charges, along with out-of-pocket disbursements, if any, which are incurred on your behalf. The
retainer fee shall be credited toward the hourly rates as stated above. If the retainer fee is exhausted, I will ask you to make
arrangements with respect to our fee. From time to time throughout the course of the mediation and Agreement drafting process,
additional advance fees may be requested having regard to the anticipated hours that still must be spent on your case; in the alternative,
I reserve
the right to require you to pay on a per session basis. You also agree to provide us with sums based on the amount of time devoted
to your case that will be indicated on monthly statements provided to you and payable within thirty (30) days. Upon receipt of
our bill, you are expected to review the bill and promptly bring to our attention any objections you may have with it. While
we strive to keep perfectly accurate time records, we recognize the possibility of human error, and we shall discuss with you any objections
you raise to the bill. You will not be charged for time expended in discussing with us any aspect of your bill. If you
do not make payments in full at the end of 30 days, we will charge you interest at the rate 1% per month on any outstanding balance. Please
be advised that I reserve the right to halt the mediation process or the drafting and/or finalization of your agreement until you are
current with your bill.
There will
be a one-time initial charge of $45.00 to cover normal costs we incur in working on your case such as for routine photocopies, office
supplies, local telephone usage and routine postage; some cases actually incur more or less of such expenses but on the average,
this is a good approximation of these charges.
Please let me know immediately if either of you
are at all dissatisfied with any of the services which I have rendered, or if you have any questions whatsoever regarding your case
or the law, or if you have any problems regarding your bill with us. I only know of your dissatisfaction or confusion if you
tell me.
When the mediation process ends, I shall return
any unused portion of the retainer and any other fees paid in advance to the parties on the same percentage as stated above.
The wife and the husband agree to pay all mediation fees and costs in the following manner: ________ percent
by the wife and _______ percent by the husband. Please note that both parties to this Mediation and Fee Contract are jointly
and severally obligated to pay these above-stated percentages of their share of the balance owing toward the mediator’s services. If,
for whatever reason, one party is unable or refuses to pay his/her share of the balance due the Firm, the other party will be responsible
for their own share along with the share of the defaulting party. If the one party does pay the defaulting party’s share,
the defaulting party will be obligated to promptly refund to the paying party the monies laid out on their behalf.
If you clearly understand and agree to be bound
by all of the terms, conditions and meaning of this Contract, please sign below where indicated on the line above your type-written
names and fill in the date on which you are signing, thereby showing your acceptance.
Dated: ______________ __________________________________
Wife
Dated: ______________ __________________________________
Husband
Dated: ______________ __________________________________
Mediator
Steven R. Sugarman, Esq.
Copyright 2004
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