MEDIATION INSTRUCTIONS TO COUNSEL IN EDNY MEDIATION (last updated 08/21/2012) I. Date for mediation session and selecting Mediator Unless otherwise provided in the Mediation Referral Order, the first mediation session will take place approximately four to six weeks after the date of the Mediation Order. Counsel are to select the Mediator, schedule the first mediation session, and (1) electronically file and (2) confirm in writing to the ADR Administrator, Gerald P. Lepp (Fax 718-613-2368) , the name of the Mediator, and the date, time, and place of the first mediation session. Counsel are to confer with each other and to speak directly with the potential Mediator, in scheduling the first mediation session. A mediation session should be scheduled for an entire day. Trial Counsel, a representative of their client with full settlement authority, and the Insurance Adjustor shall attend the mediation sessions in person. Counsel may select the Mediator from the EDNY Panel of Mediators which is listed on the ADR website www.nyed.uscourts.gov/adr and also schedule the session. The names of the mediators, their areas of concentration together with addresses and telephone numbers are listed on the website. Each mediator shall receive a fee of $600 for the first four hours or less of the actual mediation. Time spent preparing the mediation will not be compensated. Thereafter, the mediator shall be compensated at the rate of $250 per hour. The mediator’s fee shall be paid by the parties to the mediation.. Any party that is unable or unwilling to pay the Mediator’s fee may apply to the referring judge for a waiver of the fee, with a right of appeal to the District Judge in the event the referral was made by a Magistrate Judge. Counsel may also agree to a particular mediator whether or not he/she is on the EDNY panel or to use the services of an independent Alternative Dispute Resolution organization. Compensation of mediators not on the EDNY Panel is determined by agreement among Counsel and the mediator. If Counsel select the mediator, then the name of the Mediator, date, time and place of the mediation session, shall be confirmed in a letter to all Counsel with a copy to the Mediation Office (fax: 718-613-2368). The Confirmation Letter shall be filed electronically (ECF) with the Court. Please be aware that many of the EDNY panel mediators provide private mediations as well. It is very important that you identify yourself to the mediator as a party in a case which was court-ordered to mediation. Alternatively, the Mediation Department may be requested to select the Mediator. In such case, the Mediation Department will provide the parties with a list of available EDNY Panel Mediators with experience in the subject of the case. Within seven (7) days, Counsel shall rank their choices for the Mediator. Counsel shall each have one vote in which to rank their preferences. Counsel are to numerically rank their preferences for the Mediator; for example, the American LegalNet, Inc. www.FormsWorkFlow.com first choice “1", the second choice “2", the third choice “3", and so on. The ADR Administrator will select the Mediator who gets the lowest number on the combined lists of preferences and notify counsel on ECF. In accordance with Administrative order 2004-08 (as of August 2, 2004) electronic filing became mandatory in the Eastern District of New York for all cases (pro se cases are excluded). II. Submissions The mediation statement is intended to inform the mediator about the case from the party’s view. Before drafting the mediation statement, counsel should discuss with the mediator any particular requirements that the mediator may have. The Local Civil Rule 83.11(b) (4) provides that “no less than seven days prior to the first mediation session, each party shall submit directly to the mediator a mediation statement not to exceed ten pages double-spaced, not including exhibits, outlining the key facts and legal issues in the case. The statement will also include a description of motions filed and their status, and any other information that will advance settlement prospects or make the mediation more productive. Mediation statements are not briefs and are not filed with the Court, nor shall the assigned Judge or Magistrate Judge have access to them.” Unless otherwise agreed by the parties and the mediator, the submissions shall not be exchanged among counsel. III. Attendance in Person required of Trial Counsel, Insurance Adjustor, and Party Representative with full settlement authority at each Session and Session Location. Attendance in person at each mediation session is required of the trial counsel, insurance adjustor (if any) and the party or its representative with full settlement authority to settle the matter in the case of a business or governmental entity or a minor. The names and general job titles of the employee(s) or agents of the corporation or insurance company who will attend the mediation session should be included in the mediation statement. Availability by telephone is unacceptable. Mediation sessions may be conducted at the offices of the mediator, the Courthouses of the Eastern District at Central Islip and Brooklyn, and with the consent of all Counsel, a Counsel’s conference room. Telephone the Mediation Office for reservations at the Courthouses. (Telephone 718-613-2577 or FAX 718-613-2368) IV Finalizing agreement Oral agreements should be committed to writing and signed at the mediation session. In addition, a stipulation of discontinuance should be prepared and filed. A form of stipulation of discontinuance is attached hereto. American LegalNet, Inc. www.FormsWorkFlow.com V. Questionnaire for Attorneys in Mediated Cases After the mediation has taken place, please evaluate the performance of your Mediator and return your evaluation to: Gerald P. Lepp, ADR Administrator US District Court 225 Cadman Plaza East Brooklyn, NY 11201 VI.Other Resources EDNY Local Civil Rule 83.11 Court-Annexed Mediation (Eastern District Only) EDNY ADR website www.nyed.uscourts.gov/adr American LegalNet, Inc. www.FormsWorkFlow.com UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK IT IS HEREBY STIPULATED AND AGREED by and between the undersigned parties: 1. No party shall be bound by anything said or done during the Mediation, unless either a written and signed stipulation is entered into or the parties enter into a written and signed agreement. 2. The Mediator may meet in private conference with less than all of the parties. 3. Information obtained by the Mediator, either in written or oral form, shall be confidential and shall not be revealed by the Mediator unless and until the party who provided that information agrees to its disclosure. 4. The Mediator shall not, without the prior written consent of both parties, disclose to the Court any matters which are disclosed to him or her by either of the parties or any matters which otherwise relate to the Mediation. 5. The mediation process shall be considered a settlement negotiation for the purpose of all federal and state rules protecting disclosures made during such conferences from later discovery or use in evidence. The entire procedure shall be confidential, and no stenographic or other record shall be made except to memorialize a settlement record. All communications, oral or written, made during the Mediation by any party or a party’s agent, employee, or attorney are confidential and, where appropriate, are to be considered work product and privileged. Such communications, statements, promises, offers, views and opinions shall not be subject to any discovery or admissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties. Provided, however, that evidence otherwise subject to discovery or admissible is not excluded from discovery or admission in evidence simply as a result of it having been used in connection with this mediation process. 6. The Mediator and his or her agents shall have the same immunity as judges and American LegalNet, Inc. www.FormsWorkFlow.com court employees have under Federal law and the common law from liability for any act or omission in connection with the Mediation, and from compulsory process to testify or produce documents in connection with the Mediation. 7. The parties (i) shall not call or subpoena the Mediator as a witness or expert in any proceeding relating to: the Mediation, the subject matter of the Mediation, or any thoughts or impressions which the Mediator may have about the parties in the Mediation, and (ii) shall not subpoena any notes, documents or other material prepared by the Mediator in the course of or in connection with the Mediation, and (iii) shall not offer into evidence any statements, views or opinions of the Mediator. 8. The Mediator’s services have been made available to the parties through the dispute resolution procedures sponsored by the Court. In accordance with those procedures, the Mediator represents that he has taken the oath prescribed by 28 U.S.C. 453. 9. Any party to this Stipulation is required to attend at least one session and as many sessions thereafter as may be helpful in resolving this dispute. 10. An individual with final authority to settle the matter and to bind the party shall attend the Mediation on behalf of each party. Dated: _______________ ______________________ Plaintiff ______________________ Defendant ______________________ Attorneys for Plaintiff ______________________ Attorneys for Defendant Consented to: ______________________ Mediator American LegalNet, Inc. www.FormsWorkFlow.com UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------x STIPULATION OF SETTLEMENT CV ---------------------------------------------x It is hereby stipulated by and between Counsel that this action is settled. Therefore, it is ordered by the Court that this action is discontinued without costs and without prejudice to the right to reopen the action if settlement is not consummated. DATED: ____________________________________ Counsel for Plaintiff _____________________________________ Counsel for Defendant _____________________________________ SO ORDERED: U.S. DISTRICT JUDGE American LegalNet, Inc. www.FormsWorkFlow.com