UNITED STATES DISTRICT COURT

Eastern District of New York

Robert C. Heinemann Please Reply to:

Clerk *GERALD P. LEPP, ESQ*. BROOKLYN OFFICE

ADR Administrator U.S. COURTHOUSE

James Giokas 225 CADMAN PLAZA EAST

Chief Deputy BROOKLYN, NEW YORK, 11201

Telephone 718-260-2577 Fax 718-260-2546

<Gerald_P._Lepp@nyed.uscourts.gov>

**LETTER OF INSTRUCTIONS**

**TO COUNSEL IN EDNY MEDIATION**

**(last updated 1/15/02)**

I.  [Date for mediation session and selecting Mediator]{.underline}

Unless otherwise provided in the Mediation Referral Order, the first
mediation session will be scheduled approximately four to six weeks
after the date of the Mediation Order. Plaintiff's counsel is directed
to speak with his or her client and then to telephone all other counsel
to determine available dates for mediation and selection of a mediator.
A mediation session should be scheduled for an entire day. Counsel,
their clients, and insurers shall attend the mediation sessions in
person.

Counsel may select the Mediator from the EDNY Panel of Mediators which
is listed on the ADR website
[[www.nyed.uscourts.gov/adr]{.underline}](../(www.nyed.uscourts.gov/adr).)
and also schedule the session. The names of the mediators, their areas
of concentration together with addresses and telephone numbers are
listed on the website. The mediators on the panel serve pro bono and
without compensation. Counsel may also agree to a particular mediator
whether or not he/she is on the EDNY panel or to use the services of an
independent Alternative Dispute Resolution organization. Compensation of
mediators not on the EDNY Panel is determined by agreement among Counsel
and the mediator.

Alternatively, the Mediation Department may be requested to select the
Mediator.

In such case, three potential dates when all counsel, their clients, and
insurers will be available should be advised to the Mediation Office,
telephone number 718-260-2577; fax number 718-260-2546.) The Mediation
Office will thereafter select a mediator who will conduct the mediation
session on one of the three proposed dates. The Mediation Office will
notify all counsel of the date selected for the mediation session as
well as the name, address and telephone number of the selected mediator.

If Counsel select the mediator, then the name of the Mediator, date,
time and

place of the mediation, should be confirmed in a written letter to all
Counsel with a copy to the Mediation Office.

[Letter of Instructions - page 2 (last updated 1/15/02)]{.underline}

1.  [Submissions]{.underline}

The mediation statement is intended to inform the mediator about the
case from the party's view. [Before drafting the mediation statement,
counsel should discuss with the mediator any particular requirements
that the mediator may have.]{.underline}

The Local Civil Rule 83.11(b) (4) provides that "no less than seven days
prior to the first mediation session, each party shall submit directly
to the mediator a mediation statement not to exceed ten pages
double-spaced, not including exhibits, outlining the key facts and legal
issues in the case. The statement will also include a description of
motions filed and their status, and any other information that will
advance settlement prospects or make the mediation more productive.
Mediation statements are not briefs and are not filed with the Court,
nor shall the assigned Judge or Magistrate Judge have access to them."

Unless otherwise agreed by the parties and the mediator, the submissions
shall not be exchanged among counsel.

1.  [Attendance in Person by Trial Counsel and Party Representative at
    each Session and Session Location]{.underline}.

Attendance in person at each mediation session is required of both trial
counsel and the party or its representative in the case of a business or
governmental entity or a minor, with authority to settle the matter and
to bind the party. The names and general job titles of the employee(s)
or agents of the corporation or insurance company who will attend the
mediation session should be included in the mediation statement.
**Availability by telephone is unacceptable.**

Mediation sessions may be conducted at the offices of the mediator, the
Courthouse

of the Eastern District at Central Islip or at the Courthouse in the
Southern District of New York in Foley Square, Manhattan. Telephone the
Mediation Office for reservations at the Courthouses. (Telephone
718-260-2577 or FAX 718-260-2546)

1.  [Finalizing agreement]{.underline}

Oral agreements should be committed to writing and signed at the
mediation session.

In addition, a stipulation of discontinuance should be prepared and
filed. A form of stipulation of discontinuance is attached hereto.

[Letter of Instructions - page 3 (last updated 1/15/02)]{.underline}

I.  [Other Resources]{.underline}

EDNY Local Civil Rule 83.11 Court-Annexed Mediation (Eastern District
Only)

EDNY ADR website www.nyed.uscourts.gov/adr

\# \# \# \# \#

***UNITED STATES DISTRICT COURT***

***EASTERN DISTRICT OF NEW YORK***

**IT IS HEREBY STIPULATED AND AGREED** by and between the undersigned
parties:

1.  The parties shall participate in a mediation, whereby a neutral and

impartial person will assist them in attempting to reach a mutually

acceptable negotiated resolution of the dispute between them (the

Mediation").

2.  The Parties jointly accept
    \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ to

provide mediation services to them (the "Mediator").

3.  The Mediation shall be non-binding.

4.  The Mediator shall not have authority to render a decision that
    shall

bind the parties.

5.  The parties are not obligated to agree to any proposals which are
    made

during the Mediation.

6.  No party shall be bound by anything said or done during the
    Mediation,

unless either a written and signed stipulation is entered into or the
parties

enter into a written and signed agreement.

7.  The Mediator may meet in private conference with less than all of
    the

parties.

8.  Information obtained by the Mediator, either in written or oral
    form,

shall be confidential and shall not be revealed by the Mediator unless

and until the party who provided that information agrees to its
disclosure.

9.  The Mediator shall not, without the prior written consent of both
    parties,

disclose to the Court any matters which are disclosed to him or her by

either of the parties or any matters which otherwise relate to the
Mediation.

10. The mediation process shall be considered a settlement negotiation
    for

the purpose of all federal and state rules protecting disclosures made

during such conferences from later discovery or use in evidence. The

entire procedure shall be confidential, and no stenographic or other

record shall be made except to memorialize a settlement record. All

conduct, oral or written, made during the Mediation by any party or a

party's agent, employee, or attorney are confidential and, where

appropriate, are to be considered work product and privileged. Such

conduct, statements, promises, offers, views and opinions shall not be

subject to discovery or admissible for any purpose, including
impeachment,

in any litigation or other proceeding involving the parties. Provided,

however, that evidence otherwise subject to discovery or admissible is
not

excluded from discovery or admission in evidence simply as a result of

it having been used in connection with this mediation process.

11. The Mediator and his or her agents shall have the same immunity as

judges and court employees have under Federal law and the common

law from liability for any act or omission in connection with the

Mediation, and from compulsory process to testify or produce

documents in connection with the Mediation.

12. The parties (i) shall not call or subpoena the Mediator as a witness
    or

expert in any proceeding relating to: the Mediation, the subject matter

of the mediation, or any thoughts or impressions which the mediator

may have about the parties in the mediation, and (ii) shall not subpoena

any notes, documents or other material prepared by the mediator in

the course of or in connection with the Mediation, and (iii) shall not

offer in evidence any statements, views or opinions of the Mediator.

13. The Mediator's services have been made available to the parties
    through

the dispute resolution procedures sponsored by the Court. In accordance

with those procedures, the Mediator represents that he has taken the
oath

prescribed by 28 U.S.C. 453.

14. Any party to this Stipulation has a right to withdraw from the
    Mediation

at any time for any reason.

15. An individual with final authority to settle the matter and to bind
    the

party shall attend the Mediation on behalf of each party.

Dated:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Plaintiff Defendant

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Attorneys for Plaintiff Attorney for Defendant

Consented to:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Mediator

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--x

STIPULATION

OF SETTLEMENT

CV

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--x

It is hereby stipulated by and between Counsel that this action is
settled.

Therefore, it is ordered by the Court that this action is discontinued
without costs and without prejudice to the right to reopen the action if
settlement is not consummated.

DATED:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Counsel for Plaintiff

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Counsel for Defendant

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

SO ORDERED:

U.S. DISTRICT JUDGE