Mediation Agreement

The undersigned parties, legal counsel, and/or authorized representatives (collectively, the “Parties” or, individually, a “Party”) agree to participate in a mediation of the issues involved in their dispute (the “Mediation”) before the Hon. Brian A. Davis (Ret.) d/b/a BADavis ADR, LLC (the “Mediator”), who agrees to mediate the dispute to the best of his ability.

The Parties further agree as follows:

1. Participants and Procedure.

The purpose of the Mediation is to assist the Parties in negotiating a fair and reasonable resolution of their dispute, one that works better for the Parties than other alternatives to settlement. The Mediator’s role is to serve as an impartial facilitator of the Parties’ negotiations. The Mediator has no power to order or dictate any terms of any agreement. All such power belongs to the Parties.

Unless the Parties and the Mediator agree otherwise, the Parties, and only the Parties, may attend the Mediation. At least one person with full authority to resolve and settle the dispute shall attend the Mediation, either in person or virtually, on behalf of each Party, unless specifically excused by the Mediator.

The Mediation will be conducted in accordance with the BADavis ADR, LLC Mediation Rules and Guidelines and Fee Schedule, which are incorporated herein by reference.  

During the Mediation, the Mediator may have joint and/or separate meetings with the Parties as he deems necessary. If a Party informs the Mediator that certain information is being conveyed to the Mediator in confidence, the Mediator will not disclose that information to another Party.

The Parties’ participation in the Mediation is entirely voluntary. Any Party may terminate its participation in the Mediation for any reason by so notifying the Mediator and the other Parties. The Mediator may terminate his participation in the Mediation if: (a) the Parties fail to pay for the Mediator’s services; (b) continuation of the Mediation could result in a violation of applicable ethical rules; or (c) other reasonable cause.

Upon termination of the Mediation, the Parties and the Mediator will continue to be bound by the confidentiality provisions of this Mediation Agreement, and the Parties will continue to be bound by their agreement to pay for the Mediator’s services as set forth in the Fee Schedule.

2. Disclosures.

The Mediator and the Parties acknowledge and agree that they have disclosed any past or present relationship or other information that a reasonable person would believe could influence the Mediator’s impartiality, and that no conflict of interest or appearance of a conflict of interest exists.

In addition, the Mediator provides services in association with the law firm of Pierce, Davis & Perritano, LLP (“PDP”). The Mediator is not aware of any aspect of his association with PDP that would create a conflict or otherwise interfere with his ability to act as a Mediator in this matter.

The Parties specifically acknowledge and agree that the Mediator’s association with PDP does not constitute a conflict of interest or the appearance of a conflict of interest.

The Parties further acknowledge and agree that the Mediator is not acting as an attorney or otherwise providing legal advice to or on behalf of any Party, and that no attorney-client relationship with the Mediator and/or PDP is created by virtue of this Mediation Agreement or the Mediation. The Mediator may, however, provide information about applicable statutes, rules, or other provisions of law.

3. Compensation. 

The Parties agree to compensate the Mediator in a timely manner in accordance with the BADavis ADR, LLC Fee Schedule and the Rules.

4. Confidentiality. 

In order to promote an open and productive dialogue at the Mediation and help facilitate settlement of their dispute(s), the Parties acknowledge and agree that any and all written and oral communications made in the course of the Mediation are and shall remain confidential and shall not be subject to disclosure in any judicial, administrative, or private proceeding. They further acknowledge and agree that the Mediator’s notes, work product, memoranda, and case files are and shall remain confidential and not subject to disclosure in any judicial administrative, or private proceeding. The entire mediation process, including all communications and written submissions created for the Mediation, shall constitute settlement discussion and/or compromise negotiations and shall enjoy the maximum protection from discovery and disclosure possible under any applicable federal or state statute, rule, or common law provision, including, without limitation, Federal Rule of Evidence 408 and Massachusetts General Laws c. 233, § 23C.

The confidentiality obligations and restrictions set forth herein shall not apply to any information that all of the Parties agree in writing may be disclosed, or to any information about Mediation fees and expenses payment, and payment arrangements. Further, the Parties may disclose information about this Mediation to their respective attorneys, financial advisors, or counselors, and, in the case of a business or non-profit organization, those within the business or organization with a need to know, provided, however, that all such individuals and/or entities shall be informed by the Party providing them with the information that it is confidential and subject to the terms of this Mediation Agreement.

Notwithstanding the foregoing, the Mediator may report or disclose information obtained during the Mediation concerning: (a) the threat of future child abuse or neglect; (b) the risk of serious physical harm to an individual; (c) the planned commission of a crime or other unlawful activity; and (d) evidence relating to the Mediator’s purported liability in any action or proceeding against the Mediator arising from the Mediation.

5. Disqualification of the Mediator and Exclusion of Liability. 

The Parties agree to make no effort or attempt to compel the Mediator’s testimony or the testimony of any person assisting the Mediator in this matter. Each Party agrees to make no attempt to compel the Mediator or any person assisting the Mediator in this matter to produce any document created by or provided to the Mediator or such person. The Parties further agree to defend the Mediator and any person assisting the Mediator from any subpoena or other form of discovery propounded by an outside party arising out of this Mediation Agreement or the Mediation. Should any Party involved in this Mediation serve the Mediator or a person assisting the Mediator with a subpoena or other form of discovery relating in any way to the Mediation, that Party shall fully compensate the Mediator and the person assisting the Mediator for any and all time and expense incurred in responding to such subpoena or discovery. The Parties further acknowledge and agree that neither the Mediator, nor any person assisting the Mediator in the Mediation is a necessary party in any judicial or other legal proceeding relating to the Mediation or to the subject matter of the Mediation.

Neither the Mediator, nor any person assisting the Mediator shall be liable to any Party under any theory for any act or omission in connection with this Mediation Agreement or any services provided hereunder.

6. Retention of Mediation Documents and Materials. 

Unless the Parties instruct the Mediator otherwise in writing, all documents or other materials provided to the Mediator by the Parties in connection with the Mediation may be destroyed by the Mediator sixty (60) days after the conclusion of the Mediation.

7. Law Governing and Execution in Counterparts. 

This Agreement constitutes the entire agreement of the Parties and the Mediator with respect to the Mediation and supersedes all previous oral or written agreements between or among the Parties and the Mediator regarding the same. This Agreement may not be modified except by means of a writing signed by the Parties and the Mediator.

This Agreement and any and all claims, matters, or proceedings arising out of or related in any way to this Mediation Agreement and/or any services rendered hereunder shall be governed by the laws of the Commonwealth of Massachusetts, including its rules regarding conflicts of law.

The Parties acknowledge and agree that this Mediation was not referred to the Mediator by any court and, therefore, is not a “court-connected dispute resolution service” for purposes of Supreme Judicial Court Rule 1:18: Massachusetts Uniform Rules on Dispute Resolution.

This Mediation Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall be considered one and the same valid and enforceable agreement.

By signing below, the Parties acknowledge that they understand and agree to the terms set forth above, and that they have entered into this agreement voluntarily.

[Signatures]