Mediation Rules and Confidentiality Agreement

The undersigned parties have agreed to settle their dispute through mediation, using the service of the South Bay Association of REALTORS®.
The parties understand that mediation is a cooperative process based on factual information and does not assess blame or fault, but serves as an avenue for mutual resolution of their conflict. Most disputes can be successfully mediated if all parties are willing to make a good faith effort to resolve the dispute. It is important to have the critical facts presented at the mediation and that all persons necessary to reach a binding agreement are present at the mediation, including real estate agents, insurance representatives, witnesses, experts, personal representative, attorneys, etc.
Mediation is a non-binding process for resolving disputes in which a formally trained mediator facilitates communication between the parties, assists the parties in clarifying issues and explores settlement options. Once an agreement has been reached in mediation, the details of all agreements will be listed in a Settlement Agreement, which can become binding and enforceable in a court of law.
Mediation is private and confidential. California State law provides a way to limit the admissibility of evidence and disclosure, in a civil case, of anything said or revealed in mediation. California Evidence Code Section 1152.5,subdivision (a) provides:
1. Subject to the conditions and exceptions provided in this section, when persons agree to conduct and participate in mediation for the purpose of compromising, settling or resolving a dispute:
  1. Evidence of anything said, or of any admission made in the course of the mediation, is not admissible in evidence, and disclosure of any such document shall not be compelled in any civil action which, pursuant to law, testimony can be compelled to be given.
  2. Unless this document otherwise provides, no document prepared for the purpose of, or in the course of, or pursuant to, the mediation, or a copy thereof, is admissible in evidence, or subject to discovery, and disclosure of any such document shall not be compelled in any civil action which, pursuant to law, testimony can be compelled to be given.
  3. All or part of a communication or document may be disclosed if all persons who conduct or otherwise participate in the mediation consent (in writing) to its disclosure.
  4. Disclosing privileged information to the mediator will not result in waiver of the privilege.
  5. Any mediation participant may seek an injunction to prevent disclosure of information in violation of this Agreement.
The South Bay Association of REALTORS® only exception to the nondisclosure policy is as follows:
1. If all parties to the mediation, including the mediator, agree in writing to allow disclosure;
2. If the mediator reasonably believes that a participant will cause physical harm to another person.
3. Notwithstanding Section 1152.5, this Agreement and any written settlement agreement resulting from the mediation will be admissible into evidence for the limited purpose of enforcing the terms of the settlement under Section 664.6 of the California Code of Civil Procedure.
The mediation is subject to California Evidence Code Section 703.5, which prohibits the parties from calling either the mediator or the South Bay Association of REALTORS® or any officer, employee, volunteer, independent contractor or an agent thereof, as a witness in any subsequent civil proceedings of any description in which they are called upon to testify as to any matter regarding the mediation proceeding. The parties will also be prohibited from requiring the production in court of any records or documents presented to or made by the mediator.
The mediator cannot and will not offer any legal advice to any party and the mediator’s statements do not constitute legal advice. The mediator is a neutral intermediary who may not, and will not, act as an advocate for or give legal advice to any party. In this regard, if the mediator is an attorney, no attorney-client relationship is created between any party and the mediator. If the mediator is involved in the preparation of a settlement agreement, each party should have his or her attorney review the agreement before signing.
A trained mediator uses various techniques to assist in the resolution of the dispute. The mediator may, at times, meet privately (referred to as a caucus) with any and all parties in this dispute. The mediator will not disclose any information received in caucus without the permission of the party making the disclosure.
The mediator shall not reveal to third parties information provided by participants without the consent of all participants. However, without disclosing participants, names or other identifying information, the mediator may consult with colleagues about this matter, and may describe this matter in publications about mediation.
The parties are required to fully disclose and produce all information (witnesses, documents, exhibits) reasonably necessary for the mediator to understand the issues and to support the party’s position. In the event that any of the parties are unsure about the advisability of disclosure of sensitive information, it is critical to the effectiveness of the mediation process that this be discussed with the mediator in private caucus. The mediator may request any party to supplement the information presented and may accept testimony by affidavit.
A party may be represented at the mediation by an attorney or other person of the party’s choice. Expert witnesses, such as appraisers, accountants, interpreters, etc. may appear and/or present testimony, evidence or other pertinent information at the mediation in a manner mutually agreed upon by the parties and the mediator. Each party shall be responsible for the fees of any such experts appearing for, and/or presenting evidence or information on behalf of such party.
Agreements reached in the mediation process concerning this dispute may differ greatly from the result that can be reached in court. A mediated agreement could be more favorable or less favorable than a decision that a judge or jury may render if this dispute were resolved in court, or by any other dispute resolution process. The parties agree to hold the mediator and the South Bay Association of REALTORS®, any official, employee, volunteer, independent contractor or agentthereof, harmless from liability of any kind whatsoever based upon a claim that the mediation process failed to provide the same outcome, or an equally advantageous outcome, as could have been obtained in court or in another dispute resolution process.
Notices will be given to the parties or their representative at the respective address indicated on the CONSENT TO MEDIATION.
Any party may seek from a court any interim or provisional relief that may be necessary to protect the rights or property of that party pending the outcome of the mediation or to prevent the disclosure of confidential information in violation of the Agreement. Any party breaching this Agreement shall be liable for and shall indemnify the non-breaching parties and the mediator for all costs, expenses, liabilities, and fees, including attorney’s fees and cost, which may be incurred as a result of such breach.
This mediation shall be held at the Administrative office of the South Bay Association of REALTORS®, located at 22833 Arlington Ave., Torrance, CA 90501, unless the parties and the mediator otherwise agree.
This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which shall constitute on and the same agreement.
This Agreement is signed before commencement of mediation by each of the parties to the mediation on the dates set forth below.
The mediation process may be continued from time to time, in which event, the mediator’s subsequent oral and/or written communications with the mediation participants in a continuing effort to resolve the dispute are subject to this Agreement. The mediation may be terminated by agreement of the parties or at the discretion of the mediator declaring that further effort would not be worthwhile.
My/Our signature(s) further acknowledges that I/we or my/our designated representative has the authority to negotiate and settle this matter. I/We have read a fully understand the terms set forth above in this Agreement to Mediate.