CPR Mediation Procedure
Mediation is a process in which a neutral third party — a mediator — meets with the disputing parties and actively assists them in reaching a settlement. Mediation is private and confidential, flexible and more informal than other processes. It is concluded expeditiously, allowing parties to settle the dispute or narrow their issues at moderate cost. The process is less adversarial than litigation or arbitration, and therefore less disruptive of business relationships.
INTRODUCTION
Mediation is a widely used ADR process, in which a third-party neutral meets with disputing parties and actively assists them in reaching a resolution.
Mediation has the advantages of being confidential under CPR’s Procedure, flexible, and informal. It also tends to be less disruptive to business relationships and often provides a path for parties to continue doing business together. Parties engage in mediation efforts because it presents few risks and will not foreclose other options, such as arbitration or conventional litigation.
Frequently cited advantages of a mediated solution include:
- Substantial cost savings
- Promptness of resolution
- Creative, business-driven and equitable solutions
- Control over the outcome
- Preservation of business relationships
- Privacy and confidentiality
THE CPR MEDIATION PROCEDURE
(Revised and effective as of July 1, 2025)
1. Applicability of the Procedure:
The Procedure may be adopted by agreement of the parties, with or without modification, before or after a dispute has arisen. Parties may wish to consult Appendix A for the CPR Model Clauses with CPR’s suggested provisions.
2. Initiation of Mediation:
Upon agreement of the parties, a party (or parties jointly) may initiate a mediation under this Procedure by notifying all other parties and CPR in writing of the party’s intent to initiate mediation. (initiation form, https://drs.cpradr.org/file-manage-your-case). The date upon which CPR receives such notice and payment of the appropriate filing fees shall serve as the “Initiation Date.”
3. Selecting the Mediator:
Unless the parties agree otherwise, the mediator shall be selected from the CPR Panel of Distinguished Neutrals. If the parties cannot agree on a mediator within seven days of the Initiation Date, the parties may request CPR to assist in the identification of a mutually agreeable mediator, informing CPR of any preferences as to matters such as candidates’ mediation style, timing considerations, language, fees, subject matter or industry expertise, whether the mediation will be in- person or virtual, and the location if mediating in person.
CPR will promptly submit to the parties the names of up to six candidates, with their resumes, availability, and rate of compensation. Upon receipt of the list, within seven days, each party will rank the candidates from most to least preferred, with highest preferences corresponding to lowest numbers. The parties agree that the candidate with the lowest combined score will be accepted by them to serve as the mediator. CPR will break any tie.
If the parties invoke CPR’s assistance in mediation selection, but fail to supply candidate rankings, agree to CPR’s tie-breaking selection or otherwise communicate their intent to CPR to move forward with the mediation, CPR will close the case after 60 days of party inactivity.
Before proposing any mediator candidate, CPR will request the candidate engage in reasonable inquiry to determine if any actual or potential conflicts of interest exist. As CPR’s Model Rule for the Lawyer Third Party Neutral stipulates, such disclosure should include all circumstances, reasonably known to the lawyer, why the lawyer might not be perceived to be impartial. These circumstances include (i) any financial or personal interest in the outcome, (ii) any existing or past financial, business, professional, family or social relationship with any of the parties, including, but not limited to any prior representation of any of the parties, their counsel and witnesses, or serving as a neutral in any proceeding involving any of the parties, (iii) any other source of bias or prejudice concerning a person or institution which is likely to affect impartiality or which might reasonably create an appearance of partiality or bias, and (iv) any other disclosures required of the lawyer by law or contract.
If a conflict or circumstance is disclosed that suggests the candidate could not mediate impartially, CPR will not propose the individual. Non-disqualifying potential conflicts or circumstances giving rise to possible doubt regarding the candidate’s impartiality will be disclosed to the parties and the parties will be given the opportunity to accept or challenge the candidate’s suitability based on perceived impartiality concerns. Unless otherwise agreed, any such challenge shall be raised in writing within 10 business days of the challenging party’s receipt of information raising perceived impartiality concerns.
If a party challenges a mediator candidate based on reasonable impartiality concerns, CPR will appoint a substitute candidate from the list that was previously reviewed. Once selected, the mediator has a continuing obligation to disclose any circumstances that could reasonably give rise to reasonable doubt regarding the mediator’s impartiality.
Before appointment, the candidate will disclose fees, as well as the candidate’s availability to conduct the proceeding in a timely fashion with no undue delay.
It is strongly advised that the parties and the mediator enter into a retention agreement acceptable to all parties and the mediator. For reference, an illustrative form of agreement is attached hereto as Appendix A.
The mediator’s compensation and any other costs of the process will be shared equally by the parties unless they otherwise agree or the applicable contract specifies a different cost allocation. If a party withdraws from a multiparty mediation but the procedure continues, the withdrawing party will not be responsible for any costs incurred after it has notified the mediator and the other parties of its withdrawal. If the parties are utilizing CPR’s Fundholding Services, the withdrawing party must also notify CPR of its withdrawal to ensure fees no longer accrue to the withdrawing party.(For more information on CPR’s Fundholding services, visit https://drs.cpradr.org/services/fundholding).
4. Roles & Responsibilities:
(a) Of Parties and Counsel
i. Parties and counsel shall endeavor to prepare appropriately for the mediation, conducting reasonable factual inquiry to gain the broadest understanding of the facts which underly the dispute, objectively reviewing and evaluating known facts and stated legal positions, and considering the party’s underlying needs and interests that could form the basis for a satisfactory Appropriate preparation includes considering the relational, cultural and psychological components of the dispute and reasonable methods for managing those components to encourage settlement.
ii. Parties and counsel agree to enter mediation discussions with an open mind, a willingness to listen to alternative perspectives, and a commitment to a productive and constructive process.
(b) Of Mediator
i. The mediator shall be impartial, neutral and free of any conflict of interests. The mediator shall adhere to the ABA Model Standards of Conduct for Mediators and the CPR Model Rule for The Lawyer as Third-Party Neutral. Where there is a conflict between the Model Standards and the CPR Model Rule, the CPR Rule governs.
ii. The mediator shall facilitate negotiations between the parties and shall not offer legal advice or assume a representational role. Upon the request of any party or parties, the mediator may offer an evaluation of the strengths and weaknesses of various legal arguments or positions, acknowledging the inherent risks of predicting legal outcomes and that such evaluation is presented as information designed to enhance the parties’ decision making. The mediator at all times will promote party autonomy, informed decision- making, and a quality process.
5. Ground Rules of Proceeding:
The following ground rules will apply, subject to any changes upon which the parties and the mediator agree.
(a) Preliminary conference. As soon as reasonably practicable upon selection, the mediator will arrange a preliminary phone or video conference with counsel (or parties, if unrepresented). The mediator or counsel (or parties) may determine to hold such preliminary conference jointly or separately. At this conference, counsel and the mediator (or parties) are encouraged to discuss:
i. The background of the dispute, the status of any pending legal proceeding, including pending motions; discovery conducted to date; discovery cut-off or trial dates; prior settlement efforts and offers exchanged; nature of the mediation process desired by the parties; the general content and any case-specific issues the mediator suggests be included in the parties’ mediation statements; any accessibility, cybersecurity, or technological issues to be addressed to facilitate party participation; and other administrative, procedural or process issues the mediator or the participants believe should be discussed in order to make the mediation most productive.
ii. Scheduling – the (a) date for the submission of mediation statements; and (b) date, time and format or venue of the substantive mediation
iii. Who Will Attend the Mediation Session- The mediator and counsel (or the parties) will discuss who should attend the mediation session and confirm that each party will be present by a representative with sufficient knowledge, settlement authority, and discretion to resolve the dispute on terms the party believes are reasonable under the circumstances. Whether the mediation session is planned to be in-person or virtual, the mediator should inquire as to whether any accessibility or disability accommodations are requested.
iv. Information Exchange – If legal proceedings recently have been filed and little to no discovery completed, the mediator may inquire whether additional exchange of information should occur to make the substantive mediation session as productive as possible.
(b) Written Submissions
Before the first substantive mediation session, at a time mutually agreed upon by the mediator and the parties, each party shall submit to the mediator a confidential written pre-mediation submission (the “Submission”) summarizing the background and present status of the dispute, including analysis of the party’s position, interests, and litigation risks, any settlement efforts that have occurred, the party’s settlement position, any obstacles that have prevented earlier settlement, any non-economic terms that may facilitate resolution, and such other material and information as the mediator requests or the party deems helpful to familiarize the mediator with the dispute and possible resolutions. The Submission should be prepared to facilitate a productive dialogue and is not intended to be a litigation advocacy document. The parties may agree with the mediator that some or all the Submission may be exchanged to facilitate a better understanding of the other party’s viewpoint or may agree to submit certain records and other materials to the opposing party. The mediator may request any party to provide clarification and additional information.
c) Pre-mediation Conferences
Either before or after the parties’ Submissions, the mediator may contact the parties to conduct one or more additional pre-mediation conferences involving all parties and/or their counsel or separately with one or more of the parties and or their counsel. These conferences may serve several objectives, including, for example: helping to identify and focus on key issues for the mediation session, further exploring the parties’ needs and interests, surfacing potential barriers to settlement and brainstorming a range of possible solutions.
d) Substantive Mediation Session
At the substantive mediation session, the mediator will facilitate settlement discussions in a fair and impartial manner and by any process that is agreeable to the parties and that the mediator believes is appropriate. The mediator may help the parties to better understand the facts and circumstances underlying the dispute and their respective litigation, reputational and other risks, focus on their underlying interests and concerns, explore resolution alternatives, and develop settlement options. In consultation with the parties, the mediator will determine when to hold joint meetings and when to confer separately in caucus with each party throughout the mediation session(s). The parties are expected to initiate and convey to the mediator proposals for settlement and to actively participate in negotiations, which may include presenting a rationale for any settlement terms proposed.
e) There will be no stenographic, electronic or other recording of any pre-mediation meeting or mediation session. If the mediation utilizes a virtual platform that automatically records, transcribes, or summarizes the meeting, or enables any participant to do so, the parties and mediator agree to disable such function. At the mediation session(s), formal rules of evidence or procedure will not apply.
f) As noted in Section 5.a.iii, each party will be represented at each mediation joint session or caucus by a representative with sufficient knowledge, settlement authority, and discretion to resolve the dispute on terms the party believes are reasonable under the circumstances. Each party may be represented by more than one person, g., a business executive and an attorney. The mediator may limit the number of persons representing each party or present as a support person as deemed necessary or appropriate to facilitate an effective mediation process.
g) Although not required by this Procedure, it is advisable for each party to be represented by counsel.
h) All participants will try to conduct the process efficiently. Each representative will make every effort to be available for every scheduled session.
i) The mediator will not transmit information received in confidence from any party to any other party or any third party unless specifically authorized to do so by the party transmitting the information, or unless ordered to do so by a court of competent jurisdiction, after providing notice to each party of such order to afford them an opportunity to object.
j) The parties will endeavor to refrain from pursuing litigation, or any administrative or judicial remedies during the mediation process, subject to any orders in any pending proceeding and insofar as they can do so without prejudicing their legal rights.
6. Mediator Switching Roles:
If, following the mediation, the dispute is to proceed, or return, to arbitration, subject to any applicable law, the mediator may consent to serve as the arbitrator or one of the arbitrators, if: and only if i) all parties jointly request in writing that the mediator assume an arbitral role; ii) the mediator is competent to serve as an arbitrator by training and experience, iii) the mediator discusses with the parties the risks associated with sitting as arbitrator after serving as a mediator; iv) the parties provide, in writing, informed consent in light of such discussion of such risks and waiver of any challenge to the mediator’s assumption of the arbitral role on the basis of the mediator’s previous role and (iv) the mediator believes the parties are sufficiently sophisticated so as to understand the risks associated with the switch.
7. Limited Liability:
Neither CPR nor the mediator shall be liable to any party for any error, act or omission in connection with any mediation conducted under this Procedure. Neither CPR nor the mediator shall be a necessary party in any judicial proceeding relating to the mediation.
8. Mediator Withdrawal:
The mediator may withdraw at any time by written notice to the parties: i) for serious personal reasons ii) if the mediator believes that continuing to serve would be inconsistent with any applicable ethics standard, law, rule or regulation to which the mediator may be subject, or iii) if the mediator believes that a party is not acting in good faith. A mediator is under no obligation to state the reason for withdrawal.
9. Concluding Mediation:
(a) Subject to any applicable terms in the parties’ underlying agreement to mediate, efforts to reach a settlement through the mediation process will continue until (a) a written settlement as described below is reached by the parties, or (b) one or all the parties or the mediator withdraws from the process. However, if there are more than two parties in a mediation, where appropriate, the remaining parties may elect to continue the mediation following the withdrawal of any other party.
(b) If a resolution is not reached, the mediator and the parties may consider the utility of another form of dispute resolution, such as arbitration. The mediator may offer to assist the parties in structuring such a procedure. The mediator will not serve as arbitrator, unless all conditions set forth in paragraph [6] above are met.
(c) The parties and counsel shall document any settlement reached in the mediation sufficiently to evidence that an enforceable agreement exists. Decisions regarding the adequacy, nature and timing of definitive settlement documentation are the responsibility of the parties and their respective counsel.
10. Confidentiality:
(a) The entire mediation process, including all oral and written communications relating to the mediation or possible settlement, shall be confidential to the full extent permitted by applicable Unless agreed to by all parties or required to do so by law, the parties and the mediator shall not disclose to any person who is not associated with participants in the process, including any judicial officer or tribunal, any information regarding the process (including pre-mediation exchanges and submissions), proposed or agreed settlement terms, or outcome of the proceeding. If litigation or arbitration is pending, the participants may advise the court or the tribunal only of the schedule and overall status of the mediation for purposes of litigation or arbitration management. Any written settlement agreement resulting from the mediation may be disclosed for purposes of enforcement.
(b) The entire mediation process is and shall be treated as a compromise negotiation subject to Federal Rule of Evidence 408 and all state counterparts, together with any applicable statute and case law protecting the confidentiality of mediation. All offers, promises, conduct, statements, and submissions, whether oral or written, made during the mediation process by any of the parties, their agents, employees, experts and attorneys, and by the mediator shall be confidential to the full extent permitted by applicable law. Such offers, promises, conduct, statements, and submissions are privileged under any applicable mediation privilege, and shall be inadmissible and not discoverable for any purpose, including impeachment, in litigation or arbitration between the parties. However, evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable solely because of its presentation or use during the mediation.
(c) Unless ordered by a court of competent jurisdiction, the mediator and any persons assisting the mediator shall not be called or subpoenaed to testify as a witness, consultant, or expert in any pending or future administrative or judicial proceeding, arbitration, or investigation relating to the mediation, the subject matter of the underlying dispute, or any settlement thereof. Any documents in the possession of the mediator or any person assisting the mediator shall not be subpoenaed in any arbitration or proceeding, and all parties will oppose any effort to subpoena the mediator or any assistants or documents. The mediator will promptly advise the parties of any attempt to compel disclosure. Unless prohibited by law, each party shall promptly advise the other of any attempt to compel disclosure. Any party that attempts to subpoena or otherwise compel the mediator or any assistant to testify or produce any mediation-related documents shall indemnify the mediator or any such assistant for the full amount of any resulting legal fees, costs, and expenses incurred in connection with such attempt.
11. Privacy and Data Security:
The mediator and all participants shall discuss the appropriate precautions to be taken to ensure adequate privacy, data security, and cybersecurity in connection with the mediation. Appropriate considerations may include using a secure Wi- fi/Ethernet connection for all communications relating to the mediation session, using secure meeting access codes, enabling an electronic waiting room, or locking meetings once all participants have convened. Parties are encouraged to use CPR’s Complete Case platform with end-to- end encryption for the assurance of high-quality cyber-security. Additionally, no person may attend, participate, or be allowed to observe or listen in on a remote mediation session without the prior consent of all parties and the mediator. Neither the mediator nor any participant may record or permit the recording of any part of a mediation session, including audio, video, chat, closed-captions, live streaming or any other method of communication, without the written consent of all participants. Where adequate security cannot be guaranteed regarding any telephonic or video communication, parties will disclose that fact to the mediator and other parties.
12. Treatment of Mediator Materials:
(a) All materials received or generated by the mediator shall be confidential in accordance with Section 10 of this Procedure.
(b) Any notes or writings created by the mediator are the property of the mediator, , and no party shall have any claim, nor make any claim, of ownership or right of access or review of any mediator-created material. The mediator shall have no obligation to retain any party-provided material or any mediator-created material after the mediation's At the conclusion of the mediation process, upon request of a party, the mediator shall return to that party all written materials and information which that party had provided to the mediator without retaining copies thereof or certify as to the destruction of such materials. The mediator similarly shall certify as to the destruction of all notes generated by the mediator related to the substance and process of the mediation.
APPENDIX A
CPR Model Clause for Adoption of Mediation Procedure
- Pre-Dispute Clause
The parties shall attempt to resolve any dispute arising out of or relating to this Agreement promptly by confidential mediation under the [then current] CPR Mediation Procedure [in effect on the date of this Agreement] [as modified by the CPR Streamlined Mediator Selection Procedure], before resorting to arbitration or litigation.
- Existing Dispute Submission Agreement
We hereby agree to submit to confidential mediation under the CPR Mediation Procedure [as modified by the CPR Streamlined Mediator Selection Procedure] the following controversy:
[Describe briefly]
APPENDIX B
Parties and the selected mediator may wish to consider the provisions set forth in the following form of mediation agreement, provided herein as Appendix A to the CPR Mediation Procedure for illustrative purposes, and recognizing that many mediators, parties, and counsel may have preferred provisions or forms of agreement that they use and may wish to tailor such provisions to the circumstances of the instant dispute.
CPR Illustrative Agreement for Parties and Mediator*
Agreement made ,
(date)
between
represented by
and
represented by
and
(the Mediator)
A dispute has arisen between the parties (the “Dispute”). The parties have agreed to participate in a mediation proceeding (the “Proceeding”) under the CPR Mediation Procedure [as modified by mutual agreement] (the “Procedure”). The parties and the Mediator agree as follows:
A. Duties and Obligations
- The Mediator and each of the parties agree to be bound by and to comply faithfully with the Procedure, including without limitation the provisions regarding confidentiality.
- The Mediator has no previous commitments that may significantly delay the expeditious conduct of the Proceeding and will not make any such commitments.
- The Mediator, CPR, and their employees, agents and partners shall not be liable for any error, act or omission in connection with the Proceeding.
*This form assumes that the mediator is affiliated with a firm. If that is not the case, delete paras. C.3., D.2. and references to the mediator's firm in paras. B.1. and C.1.
B. Duties and Obligations
- The Mediator has made a reasonable effort to learn and has disclosed to the parties in writing (a) all business or professional relationships the Mediator and/or the Mediator’s firm have had with the parties or their law firms within the past five years, including all instances in which the Mediator or the Mediator’s firm served as an attorney for any party or adverse to any party; (b) any financial interest the Mediator has in any party; (c) any significant social, business or professional relationship the Mediator has had with an officer or employee of a party or with an individual representing a party in the Proceeding; and (d) any other circumstances that may create doubt regarding the Mediator’s impartiality in the Proceeding.
- Each party and its law firm(s) has made a reasonable effort to learn and has disclosed to every other party and the Mediator in writing any relationships of a nature described in paragraph B.1. not previously identified and disclosed by the Mediator.
- The parties and the Mediator are satisfied that any relationships disclosed pursuant to paragraphs B.1. and B.2. will not affect the Mediator’s independence or impartiality. Notwithstanding such relationships or others that the Mediator and the parties did not discover despite good faith efforts, the parties wish the Mediator to serve in the Proceeding, waiving any claim based on said relationships, and the Mediator agrees to so serve.
- The disclosure obligations in paragraphs B.1. and B.2. are continuing until the Proceeding concludes. The ability of the Mediator to continue serving in this capacity shall be explored with each such disclosure.
C. Future Relationships
- Neither the Mediator nor the Mediator’s firm shall undertake any work for or against a party regarding the Dispute.
- Neither the Mediator nor any person assisting the Mediator with this Proceeding shall personally work on any matter for or against a party, regardless of specific subject matter, prior to six months following cessation of the Mediator’s services in the Proceeding.
- Other members or employees of the Mediator’s firm may work on matters for or against a party during the pendency of the Proceeding if such matters are unrelated to the Dispute. The Mediator shall establish appropriate safeguards to ensure that other members and employees of the firm working on such matters unrelated to the Dispute do not have access to any confidential information obtained by the Mediator during the Proceeding.
D. Compensation
- The Mediator shall be compensated for time expended in connection with the Proceeding at the rate of $ ________, plus reasonable travel and other out-of-pocket expenses, as necessary and agreed by the parties. The Mediator’s fee shall be paid in equal shares by the parties. No part of such fee shall accrue to CPR.
- The Mediator may utilize members and employees of the Mediator’s firm to assist in connection with the Proceeding and may bill the parties for the time expended by any such person, to the extent and at a rate agreed upon in advance by the parties.
_________________________________ _________________________________
Party Party
by by
Party’s Attorney Party’s Attorney
____________________________
Mediator
For information on how to file a matter with CPR, see File a Case.
The information and resources on this website should not be construed as legal advice or opinion, or as a substitute for the advice of counsel.