Warning: include(/var/chroot/home/content/m/a/r/markfkatz/html/modules/mod_feed/xml.php) [function.include]: failed to open stream: No such file or directory in /home/content/75/4991075/html/index.php on line 8

Warning: include() [function.include]: Failed opening '/var/chroot/home/content/m/a/r/markfkatz/html/modules/mod_feed/xml.php' for inclusion (include_path='.:/usr/local/php5/lib/php') in /home/content/75/4991075/html/index.php on line 8

Warning: include(/var/chroot/home/content/m/a/r/markfkatz/html/templates/snappa/facelift/plugins/system.php) [function.include]: failed to open stream: No such file or directory in /home/content/75/4991075/html/index.php on line 11

Warning: include() [function.include]: Failed opening '/var/chroot/home/content/m/a/r/markfkatz/html/templates/snappa/facelift/plugins/system.php' for inclusion (include_path='.:/usr/local/php5/lib/php') in /home/content/75/4991075/html/index.php on line 11

Warning: session_start() [function.session-start]: Cannot send session cookie - headers already sent by (output started at /home/content/75/4991075/html/index.php:8) in /home/content/75/4991075/html/libraries/joomla/session/session.php on line 423

Warning: session_start() [function.session-start]: Cannot send session cache limiter - headers already sent (output started at /home/content/75/4991075/html/index.php:8) in /home/content/75/4991075/html/libraries/joomla/session/session.php on line 423

Warning: Cannot modify header information - headers already sent by (output started at /home/content/75/4991075/html/index.php:8) in /home/content/75/4991075/html/libraries/joomla/session/session.php on line 426
Resources

Resources

Mandatory Mediation Clauses

Various attorneys have asked for mandatory mediation clauses which they can incorporate into their agreements in order to require mediation prior to commencement of a lawsuit or an arbitration proceeding. So here are 2 forms of clauses which you may find helpful:

25.1 Governing Law; Arbitration; Mediation

 

(a) This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, excluding its choice of law rules.

(b) Subject only to Section 25.1(c) below, any dispute arising out of this Agreement, including any dispute regarding the arbitrability of this Agreement, shall be resolved by [one] arbitrator in an arbitration to be conducted in [Santa Clara] County, California, pursuant to the Rules of the American Arbitration Association, and judgment upon the award may be entered in any court having jurisdiction. However, the parties agree that nothing in this Section 25.1 shall prevent either party from seeking injunctive or other preliminary relief from the courts situated within [Santa Clara] County, California.

(c) Prior to, and as a condition to either party's right to commence an arbitration to resolve any dispute pursuant to this Section 25.1, the parties must attempt to resolve the dispute through a one day mediation session. In particular, unless the parties otherwise agree on a different mediation process, the party seeking to commence arbitration (the "Commencing Party") must:

(i) first provide the other party (the "Recipient") a list (the "Mediator List") consisting of five (5) mediators chosen from the then-current list of neutral mediators for the United States District Court for the Northern District of California on the website www.adr.cand.uscourts.gov. By giving written notice to the Commencing Party within the ten (10) days following receipt of such List (the " Mediator and Mediation Date Selection Period"), the Recipient shall be entitled to choose any mediator on the Mediator List as the mediator for the dispute, provided that the mediator has no conflict of interest with respect to any of the parties to the dispute. If the Recipient fails to choose a mediator within such Mediator and Mediation Date Selection Period, the Commencing Party will be entitled to select any one of those five (5) mediators as the mediator for the dispute, provided that the mediator has no conflict of interest with respect to any of the parties to the dispute. The Commencing Party must exercise this right by written notice to the Recipient given within the seven (7) days following the expiration of the Mediator and Mediation Date Selection Period;

(ii) concurrently with providing the Mediator List referenced above, provide a list of at least five (5) dates on which the Commencing Party and counsel are available for an eight (8) hour mediation session, with each of such dates being no earlier than thirty (30) days and no later than sixty (60) days after the date that the proposed mediation dates are sent by the Commencing Party. The Recipient may choose any of the proposed mediation dates by so advising the Commencing Party in writing within the Mediator and Mediation Date Selection Period. If the Recipient fails to do so, the Commencing Party will be entitled to select any one of the proposed mediation dates, by notice to the Recipient given within seven (7) days after the expiration of the Mediator and Mediation Date Selection Period.

(d) The parties shall each pay one half of the mediation expenses and the mediation shall be held in [San Jose, California] unless the parties otherwise agree.


25.1 Governing Law; Exclusive Venue and Forum; Mediation

 

(a) This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, excluding its choice of law rules.

(b) If any dispute arises out of this Agreement, then subject only to Section 25.1 (c) below, the state and federal courts situated in [Santa Clara] County, California shall have exclusive jurisdiction of such dispute and the parties expressly agree that venue shall lie exclusively with such courts.

(c) Prior to, and as a condition to either party's right to commence a lawsuit to resolve any dispute pursuant to this Section 25.1, the parties must attempt to resolve the dispute through a one day mediation session. In particular, unless the parties otherwise agree on a different mediation process, the party seeking to commence a lawsuit (the "Commencing Party") must:

(i) first provide the other party (the "Recipient") a list (the "Mediator List") consisting of five (5) mediators chosen from the then-current list of neutral mediators for the United States District Court for the Northern District of California on the website www.adr.cand.uscourts.gov. By giving written notice to the Commencing Party within the ten (10) days following receipt of such List (the "Mediator and Mediation Date Selection Period"), the Recipient shall be entitled to choose any mediator on the Mediator List as the mediator for the dispute, provided that the mediator has no conflict of interest with respect to any of the parties to the dispute. If the Recipient fails to choose a mediator within such Mediator and Mediation Date Selection Period, the Commencing Party will be entitled to select any one of those five (5) mediators as the mediator for the dispute, provided that the mediator has no conflict of interest with respect to any of the parties to the dispute. The Commencing Party must exercise this right by written notice to the Recipient given within the seven (7) days following the expiration of the Mediator and Mediation Date Selection Period;

(ii) concurrently with providing the Mediator List referenced above, provide a list of at least five (5) dates on which the Commencing Party and counsel are available for an eight (8) hour mediation session, with each of such dates being no earlier than thirty (30) days and no later than sixty (60) days after the date that the proposed mediation dates are sent by the Commencing Party. The Recipient may choose any of the proposed mediation dates by so advising the Commencing Party in writing within the Mediator and Mediation Date Selection Period. If the Recipient fails to do so, the Commencing Party will be entitled to select any one of the proposed mediation dates, by notice to the Recipient given within seven (7) days after the expiration of the Mediator and Mediation Date Selection Period.

(d) The parties shall each pay one half of the mediation expenses and the mediation shall be held in [San Jose, California] unless the parties otherwise agree.


 

A Few Important Books about the Mediation Process

1. The following are easy-to-read and probably the best available introductions to the mediation process:

R. Fisher, W. Ury and B. Patton (1990), Getting to YES

W. Ury, (1991), Getting Past No: Negotiating With Difficult People

 

2. Another interesting book which explains current research on the human brain and highlights some of the difficulties we all have in changing our minds is Joshua Lehrer’s How We Decide (2010)

 

3. This is a leading scholarly work in the field:

Christopher W. Moore (2003), The Mediation Process Practical Strategies for Resolving Conflict