Fast Track Mediation Rules

1. Initiation of Mediation

a. The Fast Track Mediation Rules may be adopted by agreement of the parties, with or without modification, before or after a dispute has arisen, either through a pre-dispute clause in a contract, or by entering into a dispute submission agreement.

2. Mediator Appointment

a. The mediator may be mutually selected by the parties or, in the event the parties cannot agree, appointed by CPR. At the request of either party, CPR will act expeditiously to appoint a mediator.

b. If the mediator determines that additional independent expertise is needed, the mediator shall make a recommendation to the parties for the selection of an independent expert to assist in the mediation.

3. Mediation Locale

a. The mutual agreement of the parties on the locale for mediation will control.

b. In absence of an agreement, the mediator shall determine the locale and the mediator’s decision shall be final and binding.

4. Initial Conferences

a. No later than two business days after appointment, the mediator will contact the parties for the purpose of conducting a conference to establish the time and place for the mediation, required attendees, and the submittal of additional materials to assist the mediation.

b. The mediator may confer directly with either party prior to the mediation so long as both parties are afforded an equal opportunity to be heard.

5. Mediation Initial Submissions

a. Each party’s submission shall be divided into the following parts:

i. A non-confidential submission, which shall include a short statement of facts and issues to be resolved as separate agenda items with an identification of the stakeholders within the party’s organization that control the resolution of each agenda item.

ii. A confidential submission, which, for each agenda item, shall state the party’s goals. The confidential submission shall be provided to the mediator directly and not exchanged with the other side.

b. Each party’s submission shall identify on the first page of the submission what, if any, particular expertise is needed.

6. Mediation Session Submissions

Two days prior to the hearing each party may submit a short additional mediation statement. Absent further direction from the mediator or agreement of the parties, the additional mediation statement shall have three parts:

a. First part: joint statement of prior efforts to resolve the dispute listing points of resolution, points of division and last offers, together with a statement if such offers are outstanding or withdrawn;

b. Second part: each party’s short statement of position on every open agenda item;

c. Third part: a confidential submission to the mediator listing the economic costs and business issues for each party with respect to each agenda item, or any other information a party deems important for the arbitrator to know.

7. Mediation Sessions

a. To the extent feasible, mediation will occur on consecutive days.

b. Sessions shall be confidential. Confidentiality shall cover all oral communications with or in the presence of the mediator and all written communications. The submission to mediation under these rules shall be deemed an agreement by each submitting party to treat the mediation session and all reasonably connected communications as settlement negotiations entitled to protection of Fed. R. Civ. P. 408 and any similar state rule. No statement may ever be used in any other proceeding for any purpose whatsoever except as the parties may jointly decide to waive confidentiality.

c. The mediator’s role shall be to facilitate resolution of agenda items and the mediator shall have no power to impose a resolution.

d. The mediator shall have complete discretion and control over each mediation session, including the time period for each session and suspension of any session.

8. Termination of Mediation

a. The mediation will be terminated if the parties achieve a resolution or, alternatively, if either the mediator or one of the parties determines that, in its view, the mediation is not productive.

b. If the dispute was not completely resolved, upon termination, the mediator may recommend alternative methods for resolving all or part of the dispute to the parties.

            Such methods may include:

i. mediator arbitration of all or a part of the unresolved agenda items;

ii. baseball arbitration of all or a part of the unresolved agenda items;

iii. expert or other evaluation of all or a part of the unresolved agenda items;

iv. non-binding arbitration;

v. the investigation and development of additional data to assist the parties in resolving the dispute;

vi. fast track arbitration; or

vii. such other methods as the mediator deems appropriate in light of the nature of the parties’ unresolved agenda items. Such recommendations may include separation of agenda items for purposes of mediation, arbitration or other dispute recommendation suggestions and ordering of the process by which each agenda item shall be resolved.

c. The mediator’s recommendations shall be non-binding on the parties. With respect to any such recommendations, no party shall be required to respond directly to the mediator. The parties shall confer to determine if any such recommendation is acceptable and jointly inform the mediator of their decision. If the parties accept the mediator’s recommendation and if the recommendation involves the sharing of information or positions developed during the mediation process, then the parties shall be deemed to waive confidentiality but only to the extent necessary to implement the recommendation.

d. Upon termination, at the request of the parties, the mediator may also recommend changes in the parties’ present procedures for determining, isolating, addressing and resolving potential areas of disagreement in the parties’ ongoing contractual arrangements.

MEDIATION/ARBITRATION OPTION

1. Mediation/arbitration option

At any point during the mediation, the parties may mutually consent to submit any matter or portion thereof to arbitration before the same neutral acting as the mediator.* The mediator shall not be disqualified to serve as an arbitrator. By consenting to mediation/arbitration before the same neutral, the parties will be deemed to waive any objection to such a procedure and accept such a procedure as a tool to break impasses on critical agenda items that may assist in the resolution of the overall disagreements between the parties. Any such consent shall be in writing.

2. Selection of Rules

At the time of any such consent, the parties shall agree upon the rules that will govern the arbitration. The parties may agree upon any rules that they deem appropriate including use of some or all of the Fast Track Arbitration Rules set forth below, the Non-Administered Rules or any other Rules that are mutually agreeable. Such agreement shall be in writing and made a part of the consent. The parties may also permit the arbitrator to select the appropriate rules and procedure that will govern the arbitration.

3. Congruent Tracks

The parties may also select mediation/arbitration with different people serving as the mediator and the arbitrator.

For information on how to file a matter with CPR, see File a Case | CPR International Institute for Conflict Prevention & Resolution (cpradr.org).