1. Definition of Mediation.
Mediation is a process under which an impartial person, the mediator, facilitates communication between the parties to promote reconciliation, settlement or understanding among them. The Mediator may suggest ways of resolving the dispute, but may not impose his/her judgment on the issues for that of the parties.
2. Agreement of Parties
Whenever the parties have agreed to mediation they shall be deemed to have made these rules, as amended, and in effect as of the date of the submission of the dispute, a part of their agreement to mediate.
3. Consent to Mediator
The parties consent to the appointment of the individual named as mediator in their case. The Mediator shall act as an advocate for resolution and shall use his best effort to assist the parties in reaching a mutually acceptable settlement.
4. Conditions Precedent to Serving as Mediator
To qualify as an HMAA approved mediator, the Member must be in good-standing and have the following qualifications:
a) if you are a Texas-licensed attorney - not less than 10 years of legal practice, not less than the 40 hour mediation training program approved for Texas-approved mediators, plus a minimum of 6 completed mediations (in which you served as mediator, advocate, party or observer); or
b) if you are a commercial maritime business person - not less than 10 years of commercial maritime experience, and either the above-described 40 hour mediation training program approved for Texas-approved mediators or another HMAA-approved mediation-training program, plus a minimum of 6 completed mediations (in which you served as mediator, advocate, party or observer).
The Mediator will only serve in cases which the parties are represented by attorneys, unless the pro se litigant agrees to sign, in advance, an acknowledgment that the Mediator does not give legal advice or serve as counsel for any party to the mediation. The Mediator shall not serve as a mediator in any dispute in which he/she has any financial or personal interest in the result of the mediation. Prior to accepting the appointment, the Mediator shall disclose any circumstance likely to create a presumption of bias or prevent a prompt meeting with the parties. In the event that the parties disagree as to whether the Mediator shall serve, the Mediator shall not serve.
5. Authority of Mediator
The Mediator does not have the authority to decide any issue for the parties, but will attempt to facilitate the voluntary resolution of the dispute by the parties. The mediator is authorized to conduct joint and separate meetings with the parties and to offer suggestions to assist the parties achieve settlement. If necessary, the mediator may also obtain expert advice concerning technical aspects of the dispute, provided that the parties agree and assume the expenses of obtaining such advice. Arrangements for obtaining such advice shall be made by the Mediator or the parties, as the Mediator shall determine.
6. Mediator Cannot Impose Settlement
The parties understand that the Mediator will not and cannot impose a settlement in their case and agree that a settlement, if any, must be voluntarily agrees to by the parties. The Mediator, as an advocate for settlement, will use every effort to facilitate the negotiations. The Mediator does not warrant or represent that settlement will result from the mediation process.
7. Authority of Representatives.
PARTY REPRESENTATIVES MUST HAVE AUTHORITY TO SETTLE AND ALL PERSONS NECESSARY TO THE DECISION TO SETTLE SHALL BE PRESENT. The names and addresses of such persons shall be communicated in writing to all parties and to the Mediator.
8. Time and Place of Mediation
The Mediator shall fix the time of each mediation session. The mediation shall be held at the office of the Mediator or at any other convenient location agreeable to the Mediator and the parties as the Mediator shall determine.
9. Identification of Matters in Dispute
Prior to the first scheduled mediation session, each party shall provide the Mediator and all attorneys of record with an Information Sheet and Request for Mediation on the form provided by the Mediator setting forth its position with regard to the issues that need to be resolved.
Mediation sessions are private. The parties and their representatives may attend the mediation sessions. Other persons may attend only with the permission of the parties and width the consent of the Mediator.
Confidential information disclosed to a Mediator by the parties or by witnesses in the course of the mediation shall not be divulged by the Mediator. All records, reports, or other documents received by a mediator while serving in that capacity shall be confidential. The Mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversary proceeding or judicial forum. Any party that violates this agreement shall pay all fees and expenses of the Mediator and other parties, including reasonable attorney’s fees incurred in opposing the effort to compel testimony or records from the Mediator.
12. No Stenographic Record
The shall be no stenographic record of the mediation process and no person shall tape or record any portion of the mediation session.
13. No Service of Process at or near the site of the Mediation Session.
No subpoenas, summons, complaints, citations, writs or other process may be served upon any person at or near the site of any mediation session, or upon any person entering, attending, or leaving the mediation session.
14. Termination of Mediation
The mediation shall be terminated: a) by the execution of a settlement by the parties; b) by declaration of the Mediator to the effect that further efforts at mediation are no longer worthwhile; c) after the completion of one full mediation session, by a written declaration of a party or parties to the effect that the mediation proceedings are terminated.
15. Exclusion of Liability
The Mediator is not a necessary or proper party in any judicial proceedings related to the mediation. Neither Mediator nor any law firm employing Mediator shall be liable to any party for any act or omission in connection with any mediation conducted under these rules.
16. Interpretation and Application of Rules
The Mediator shall interpret and apply these rules.
17. Fees and Expenses
The Mediator daily fee shall be agreed upon prior to the mediation and shall be paid in advance of each mediation day. The expenses of witnesses for either side shall be paid by the party producing such witness. All other expenses of mediation, including fees and expenses of the Mediator, shall be come equally by the parties unless they agree otherwise.