Contra
Costa County Bar Association
AGREEMENT
TO MEDIATE AN ATTORNEY/CLIENT FEE DISPUTE
PURSUANT TO BUSINESS AND PROFESSIONS CODE SECTIONS 6200-6206
And Pursuant to Evidence Code Section 1119
Client:
_____________________________ Attorney_____________________________
The client and the attorney agree to mediate this fee dispute and accept the following terms and conditions.
1. We understand that the CONTRA COSTA COUNTY BAR ASSOCIATION will appoint the mediator(s) to facilitate our dispute. We understand that any decision to settle this dispute through mediation is voluntary and that no agreement shall be binding without the consent of all parties.
2. We have read and agree to abide by the rules of procedure for this program.
3. We understand that except under the limited circumstances permitted by Evidence Code Section 703.5 (see reverse) no mediator shall be called as a witness in any litigation that may result from the matter being mediated.
4. We agree that pursuant to Evidence Code Section 1119 (see reverse) the mediation conference is entirely confidential, and there shall be no disclosure of any statement made or document created during the mediation in any later civil action or proceeding. We further agree that, except as set forth in number 6 below, no statement made or document created during the mediation shall be relied upon or introduced as evidence in any arbitration, administrative hearing or judicial or other proceeding. We understand that the mediator may confer with participants in separate confidential meetings as well as in joint meetings as the mediator shall determine is appropriate.
5. We agree that if we reach a resolution, or partial resolution of the dispute our agreement will be put in writing and signed by us. We agree that the writing shall include (a) the amount Attorney agrees to refund to Client; OR the amount Client agrees to pay Attorney; OR whether nothing should be paid to any party; (b) the full name of the individual attorney responsible for any refund to Client; and (c) the amount of any allocation of the filing fee in reaching this agreement. If no agreement is reached, we understand that the Mediator shall notify the Panel in writing and the matter will proceed to arbitration in accordance with the Rules of Arbitration.
6. We agree that, notwithstanding Evidence Code Section 1123 (see reverse), once any written agreement reached between us in the course of this mediation has been signed by us, that agreement will be admissible in evidence and subject to discovery for the following purposes: (a) in the event of an alleged breach of this agreement and (b) in the event of a State Bar enforcement proceeding under Section 6203(d) of the Business and Professions Code, or (c) in the event of enforcement by a court.
Signed:
_____________________________________ Date:
__________________
Client
Signed: _____________________________________ Date: __________________
Attorney
State of California 703.5. No person presiding at any judicial or quasi-judicial proceeding, and no arbitrator or mediator, shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding, except as to a statement or conduct that could (a) give rise to civil or criminal contempt, (b) constitute a crime, (c) be the subject of investigation by the State Bar or Commission on Judicial Performance, or (d) give rise to disqualification proceedings under paragraph (1) or (6) of subdivision (a) of Section 170.1 of the Code of Civil Procedure.
1119. Except as otherwise provided in this chapter:
(a) No
evidence of anything said or any admission made for the purpose of, in the
course of, or pursuant to, a mediation or a mediation consultation is
admissible or subject to discovery, and disclosure of the evidence shall not be
compelled, in any arbitration, administrative adjudication, civil action, or
other noncriminal proceeding in which, pursuant to law, testimony can be
compelled to be given.
(b) No
writing, as defined in Section 250, that is prepared for the purpose of, in the
course of, or pursuant to, a mediation or a mediation consultation, is
admissible or subject to discovery, and disclosure of the writing shall not be
compelled, in any arbitration, administrative adjudication, civil action, or
other noncriminal proceeding in which, pursuant to law, testimony can be
compelled to be given.
(c) All
communications, negotiations, or settlement discussions by and between
participants in the course of a mediation or a
mediation consultation shall remain confidential.
1120. (a) Evidence otherwise admissible or subject
to discovery outside of a mediation or a mediation consultation shall not be or
become inadmissible or protected from disclosure solely by reason of its
introduction or use in a mediation or a mediation consultation.
(b) This
chapter does not limit any of the following:
(1) The
admissibility of an agreement to mediate a dispute.
(2) The
effect of an agreement not to take a default or an agreement to extend the time
within which to act or refrain from acting in a pending civil action.
(3)
Disclosure of the mere fact that a mediator has served, is serving, will serve,
or was contacted about serving as a mediator in a dispute.
1121. Neither a mediator nor anyone else may submit
to a court or other adjudicative body, and a court or other adjudicative body
may not consider, any report, assessment, evaluation, recommendation, or
finding of any kind by the mediator concerning a mediation conducted by the
mediator, other than a report that is mandated by court rule or other law and
that states only whether an agreement was reached, unless all parties to the
mediation expressly agree otherwise in writing, or orally in accordance with
Section 1118.
1122. (a) A communication or a writing, as defined
in Section 250, that is made or prepared for the purpose of, or in the course
of, or pursuant to, a mediation or a mediation consultation, is not made inadmissible,
or protected from disclosure, by provisions of this chapter if either of the
following conditions is satisfied:
(1) All
persons who conduct or otherwise participate in the mediation expressly agree
in writing, or orally in accordance with Section 1118, to disclosure of the
communication, document, or writing.
(2) The
communication, document, or writing was prepared by or on behalf of fewer than
all the mediation participants, those participants expressly agree in writing,
or orally in accordance with Section 1118, to its disclosure, and the
communication, document, or writing does not disclose anything said or done or
any admission made in the course of the mediation.
(b) For
purposes of subdivision (a), if the neutral person who conducts a mediation expressly agrees to disclosure, that agreement
also binds any other person described in subdivision (b) of Section 1115.
1123. A written settlement agreement prepared in the
course of, or pursuant to, a mediation, is not made
inadmissible, or protected from disclosure, by provisions of this chapter if
the agreement is signed by the settling parties and any of the following
conditions are satisfied:
(a) The
agreement provides that it is admissible or subject to disclosure, or words to
that effect.
(b) The
agreement provides that it is enforceable or binding or words to that effect.
(c) All
parties to the agreement expressly agree in writing, or orally in accordance
with Section 1118, to its disclosure.
(d) The
agreement is used to show fraud, duress, or illegality that is relevant to an
issue in dispute.
1126. Anything said, any admission made, or any
writing that is inadmissible, protected from disclosure, and confidential under
this chapter before a mediation ends, shall remain inadmissible, protected from
disclosure, and confidential to the same extent after the mediation ends.
1127. If a
person subpoenas or otherwise seeks to compel a mediator to testify or produce
a writing, as defined in Section 250, and the court or other adjudicative body
determines that the testimony or writing is inadmissible under this chapter, or
protected from disclosure under this chapter, the court or adjudicative body
making the determination shall award reasonable attorney's fees and costs to
the mediator against the person seeking the testimony or writing.