Mark A.W. Smith & Company
Complexity, Simplified

Commercial Mediation Rules

These rules are modified from the AAA commercial mediation rules

1. Agreement of Parties

Whenever, by stipulation or in their contract, by court order or by mutual agreement , the parties have provided for mediation or conciliation of existing or future disputes under under these rules, they shall be deemed to have made these rules, as amended and in effect as of the date of the submission of the dispute, a part of their agreement.

2 Initiation of Mediation

Any party or parties to a dispute may initiate mediation by filing with the Mark A. W. Smith & Company a submission to mediation or a written request for mediation. Where there is no submission to mediation or contract providing for mediation, a party may request Mark A.W. Smith & Company to invite another party to join in a submission to mediation. Upon receipt of such a request, Mark A.W. Smith & Company will contact the other parties involved in the dispute and attempt to obtain a submission to mediation.

3 Requests for Mediation

A request for mediation shall contain a brief statement of the nature of the dispute and the names, addresses, and telephone numbers of all parties to the dispute and those who will represent them, if any, in the mediation. The original of the submission shall be submitted to Mark A.W. Smith & Company. The initiating party shall simultaneously provide a copy to every other party to the dispute.

4 Appointment of the Mediator

Mark A. W. Smith will serve as mediator in all insurance coverage, construction defect and complex civil litigation matters. If a mediator other than Mr. Smith is appointed, such appointment will not be made without the express consent of the parties. Normally, a single mediator will be appointed unless the parties agree otherwise. From time the time Mark A.W. Smith & Company may appoint a co-mediator for training purposes. There will be no charge for the services of such co-mediators.

5 Qualifications of the Mediator

No person shall serve as a mediator in any dispute in which that person has any financial or personal interest in the result of the mediation, except by the written consent of all parties. Prior to accepting an appointment, the prospective mediator shall disclose any circumstance likely to create a presumption of bias or prevent a prompt meeting with the parties.

6 Vacancies

If any mediator shall become unwilling or unable to serve, Mark A.W. Smith & Company will appoint another mediator, unless the parties agree otherwise.

7 Representation

Any party may be represented by persons of the party’s choice. The names and addresses of such persons shall be communicated in writing to all parties and to Mark A.W. Smith & Company.

8 Date, Time, and Place of Mediation

The mediator shall fix the date and the time of each mediation session. The mediation shall be held at any convenient location agreeable to the mediator and the parties, as the mediator shall determine. The cost, if any, for rental of the mediation site shall be in addition to the mediators fess.

9 Identification of Matters in Dispute

At least ten days prior to the first scheduled mediation session, each party shall provide the mediator with a brief memorandum setting forth its position with regard to the issues that need to be resolved. Such memorandum may be in brief or letter form. At the discretion of the mediator, such memoranda may be mutually exchanged by the parties.

The parties will be expected to produce all information reasonably required for the mediator to understand the issues presented.

The mediator may require any party to supplement such information.

10 Authority of the Mediator

The mediator does not have the authority to impose a settlement on the parties but will attempt to help them reach a satisfactory resolution of their dispute. The mediator is authorized to conduct joint and separate meetings with the parties and to make oral and written recommendations for settlement. Whenever 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.

The mediator is authorized to end the mediation whenever, in the judgment of the mediator, further efforts at mediation would not contribute to a resolution of the dispute between the parties.

11 Privacy

Mediation sessions are private. The parties and their representatives may attend mediation sessions. Other persons may attend only with the permission of the parties and with the consent of the mediator.

12 Confidentiality

Confidential information disclosed to a mediator by the parties or by witnesses in the course of the mediation shall not be divulged by the mediator. All records, reports, or other documents received by a mediator while serving in that capacity shall be confidential. Mark A.W. Smith & Company has established a policy of destroying all documents provided to the mediator 10 days after the final conclusion of mediation, except for the original agreement to mediate and a copy of the settlement agreement. At the request of the parties Mark A.W. Smith & Company will retain its complete records for a mutually agreed upon time. The mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversary proceeding or judicial forum.

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 willingness to accept a proposal for settlement made by the mediator.

13 No Stenographic Record

There shall be no stenographic record of the mediation process.

14 Termination of Mediation

The mediation shall be terminated:

a. by the execution of a settlement agreement by the parties;

b. by a written declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile; or

c. by a written declaration of a party or parties to the effect that the mediation proceedings are terminated.

15 Exclusion of Liability

Neither Mark A.W. Smith & Company nor any mediator is a necessary party in judicial proceedings relating to the mediation.

Neither Mark A.W. Smith & Company nor any mediator shall be liable to any party for any act or omission in connection with any mediation conducted under these rules.

16 Interpretation and Application of Rules

The mediator shall interpret and apply these rules insofar as they relate to the mediator’s duties and responsibilities.

17 Expenses

The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the mediation, including required traveling and other expenses of the mediator and representatives of Mark A.W. Smith & Company, and the expenses of any witness and the cost of any proofs or expert advice produced at the direct request of the mediator, shall be borne equally by the parties unless they agree otherwise.