UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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AGREEMENT

WHEREAS the above captioned matter has been ordered to Mediation with
the agreement of the parties:

NOW THEREFORE, the parties and the mediator whose signatures appear
below agree that:

1\. The Mediation shall be conducted in accordance with the Eastern
District of New York Local Civil Rule 83.11.

2\. All written and oral communications made by any party, attorney,
other participants, or the mediator in connection with or during any
mediation session are privileged and confidential and shall NOT be
disclosed or used for any purpose in this or any other pending future
proceeding. However, evidence that would otherwise be discoverable or
admissible shall not be rendered non-discoverable or inadmissable as a
result of its use in this Mediation.

3\. No party shall be bound by anything said or done at mediation
sessions, unless a written and signed settlement is reached or the
parties enter into a written and signed agreement about the pre-trial
management of the case. Any agreement reached shall be in writing and,
when signed, shall be binding upon all parties to the agreement.

4\. The parties agree not to subpoena the mediator or any notes,
documents or other materials prepared by the Mediator in the course of
or in connection with the Mediation. In no event will the Mediator
voluntarily testify on behalf of a party.

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Plaintiff Defendant

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Counsel for Plaintiff Counsel for Defendant

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Mediator

DATED: / /20

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 retain [ ]{.underline} to provide mediation
services to them (the\"Mediator\").

3\. The Mediation shall be non-binding.

4\. The Mediator shall not have the 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 materials prepared by the
mediator in the course of or 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:

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Plaintiff Defendant

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Attorneys for Plaintiff Attorneys for Defendant

Consented to:

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Mediator

(Eastern District Only)

**Local Civil Rule 83.11**

**Court-Annexed Mediation**

Court‑Annexed Mediation

(a)** Description.** Mediation is a process in which parties and counsel
agree to meet with a neutral mediator trained to assist them in settling
disputes. The mediator improves communication across party lines, helps
parties articulate their interests and understand those of the other
party, probes the strengths and weaknesses of each party\'s legal
positions, and identifies areas of agreement and helps generate options
for a mutually agreeable resolution to the dispute. In all cases,
mediation provides an opportunity to explore a wide range of potential
solutions and to address interests that may be outside the scope of the
stated controversy or which could not be addressed by judicial action. A
hallmark of mediation is its capacity to expand traditional settlement
discussions and broaden resolution options, often by exploring litigant
needs and interests that may be formally independent of the legal issues
in controversy.

(b)** Mediation Procedures.**

\(1\) **Eligible cases.** Judges and Magistrate Judges may designate
civil cases for inclusion in the mediation program, and when doing so
shall prepare an order to that effect. Alternatively, and subject to the
availability of qualified mediators, the parties may consent to
participation in the mediation program by preparing and executing a
stipulation signed by all parties to the action and so‑ordered by the
Court.

\(A\) **Mediation deadline.** Any court order designating a case for
inclusion in the mediation program, however arrived at, may contain a
deadline not to exceed six months from the date of entry on the docket
of that order. This deadline may be extended upon motion to the Court
for good cause shown.

\(2\) **Mediators. ** Parties whose case has been designated for
inclusion in the mediation program shall be offered the options of (a)
using a mediator from the Court\'s panel, a listing of which is
available in the Clerk\'s Office; (b) selecting a mediator on their own;
or (c) seeking the assistance of a reputable neutral ADR organization in
the selection of a mediator.

\(A\) **Court\'s panel of mediators**. When the parties opt to use a
mediator from the Court\'s panel, the Clerk\'s Office will appoint a
mediator to handle the case who (i) has been for at least five years a
member of the bar of a state or the District of Columbia; (ii) is
admitted to practice before this Court; and (iii) has completed the
Court\'s requirements for mediator training and mediator expertise. If
any party so requests, the appointed mediator also shall have expertise
in the area of law in the case. The Clerk\'s Office will provide notice
of their appointment to all counsel.

\(B\) **Disqualification. **Any party may submit a written request to
the Clerk\'s Office within ten days from the date of the notification of
the mediator for the disqualification of the mediator for bias or
prejudice as provided in 28 U.S.C. § 144. A denial of such a request by
the Clerk\'s Office is subject to review by the assigned Judge upon
motion filed within ten days of the date of the Clerk\'s Office denial.

\(3\) **Scheduling the mediation**. The mediator, however chosen, will
contact all attorneys to fix the date and place of the first mediation
session, which shall be held within thirty days of the date the mediator
was appointed or at such other time as the Court may establish.

\(A\) The Clerk\'s Office will provide counsel with copies of the
Judge\'s order referring the case to the mediation program, the Clerk\'s
Office notice of appointment of mediator (if applicable), and a copy of
the program procedures.

\(4\) **Written mediation statements**. 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.

\(5\) **Mediation session(s). **The mediator meets initially with all
parties to the dispute and their counsel in a joint session. The
mediator may hold mediation sessions in his/her office, or at the Court,
or at such other place as the parties and the mediator shall agree. At
this meeting, the mediator explains the mediation process and gives each
party an opportunity to explain his or her views about the matters in
dispute. There is then likely to be discussion and questioning among the
parties as well as between the mediator and the parties.

\(A\) **Separate caucuses.** At the conclusion of the joint session, the
mediator will typicallycaucus individually with each party. Caucuses
permit the mediator and the parties to explore more fully the needs and
interests underlying the stated positions. In caucuses the strives to
facilitate settlement on matters in dispute and the possibilities for
settlement. In some cases the mediator may offer specific suggestions
for settlement; in other cases the mediator may help the parties
generate creative settlement proposals.

(**B) Additional sessions. ** The mediator may conduct additional joint
sessions to promote further direct discussion between the parties, or
she/he may continue to work with the parties in private caucuses.

\(C\) **Conclusion.** The mediation concludes when the parties reach a
mutually acceptable resolution, when the parties fail to reach an
agreement, on the date the Judge or Magistrate Judge specified as the
mediation deadline in their designation order, or in the event no such
date has been specified by the Court, at such other time as the parties
and/or the mediator may determine. The mediator has no power to impose
settlement and the mediation process is confidential, whether or not a
settlement is reached.

\(6\) **Settlement.** If settlement is reached, in whole or in part, the
agreement, which shall be binding upon all parties, will be put into
writing and counsel will file a stipulation of dismissal or such other
document as may be appropriate. If the case does not settle, the
mediator will immediately notify the Clerk\'s Office, and the case or
the portion of the case that has not settled will continue in the
litigation process.

\(c\) Attendance at Mediation Sessions.

\(1\) In all civil cases designated by the Court for inclusion in the
mediation program,

attendance at one mediation session shall be mandatory: thereafter,
attendance shall be

voluntary. The Court requires of each party that the attorney who has
primary responsibility

for handling the trial of the matter attend the mediation sessions.

\(2\) In addition, the Court may require, and if it does not, the
mediator may require the

attendance at the mediation session of a 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. This

requirement reflects the Court\'s view that the principal values of
mediation include affording

litigants with an opportunity to articulate their positions and
interests directly to the other

parties and to a mediator and to hear, first hand, the other party\'s
version of the matters in

dispute. Mediation also enables parties to search directly with the
other party for mutually

agreeable solutions.

\(d\) **Confidentiality.**

\(1\) The parties will be asked to sign an agreement of confidentiality
at the beginning of the

first mediation session to the following effect:

\(A\) Unless the parties otherwise agree, all written and oral
communications made by the

parties and the mediator in connection with or during any mediation
session are confidential

and may not be disclosed or used for any purpose unrelated to the
mediation.

\(B\) The mediator shall not be called by any party as a witness in any
court proceeding related

to the subject matter of the mediation unless related to the alleged
misconduct of the mediator.

\(2\) Mediators will maintain the confidentiality of all information
provided to, or discussed

with, them. The Clerk of Court and the ADR Administrator are responsible
for program

administration, evaluation, and liaison between the mediators and the
Court and will maintain

strict confidentiality.

\(3\) No papers generated by the mediation process will be included in
Court files, nor shall

the Judge or Magistrate Judge assigned to the case have access to them.
Information about

what transpires during mediation sessions will not at any time be made
known to the Court,

except to the extent required to resolve issues of noncompliance with
the mediation

procedures. However, communications made in connection with or during a
mediation may

be disclosed if all parties and, if appropriate as determined by the
mediator, the mediator so

agree. Nothing in this section shall be construed to prohibit parties
from entering into written

agreements resolving some or all of the case or entering and filing with
the Court procedural

or factual stipulations based on suggestions or agreements made in
connection with a

mediation.

(e)** Oath and Disqualification of Mediator.**

\(1\) Each individual certified as a mediator shall take the oath or
affirmation prescribed by 28

U.S.C. §453 before serving as a mediator.

\(2\) No mediator may serve in any matter in violation of the standards
set forth in Section 455

of Title 28 of the United States Code. If a mediator is concerned that a
circumstance covered

by subparagraph (a) of that section might exist, e.g., if the
mediator\'s law firm has represented

one or more of the parties, or if one of the lawyers who would appear
before the mediator at

the mediation session is involved in a case on which an attorney in the
mediator\'s firm is

working, the mediator shall promptly disclose that circumstance to all
counsel in writing. A

party who believes that the assigned mediator has a conflict of interest
shall bring this concern

to the attention of the Clerk\'s Office in writing, within ten calendar
days of learning the source

of the potential conflict or the objection to such a potential conflict
shall be deemed to have

been waived. Any objections that cannot be resolved by the parties in
consultation with the

Clerk\'s Office shall be referred to the Judge or Magistrate Judge who
has designated the case

for inclusion in the mediation program.

\(3\) A party who believes that the assigned mediator has engaged in
misconduct in such

capacity shall bring this concern to the attention of the Clerk\'s
Office in writing, within ten

calendar days of learning of the alleged misconduct or the objection to
such alleged

misconduct shall be deemed to have been waived. Any objections that
cannot be resolved by

the parties in consultation with the Clerk\'s Office shall be referred
to the Judge who has

designated the case for inclusion in the mediation program.

\(f\) **Services of the Mediators.**

\(1\) Participation by mediators in the program is on a voluntary basis,
without compensation.

Attorneys serving on the Court\'s panel will be given credit for pro
bono work.

\(2\) Appointment to the Court\'s panel is for a three year term,
subject to renewal. A panelist

will not be expected to serve on more than two cases during any twelve
month period and will

not be required to accept each assignment offered. Repeated rejection of
assignments will

result in the attorney being dropped from the panel.

\(g\) **Immunity of the Mediators**. Mediators shall be immune from
liability or suit with respect

to their conduct as such to the maximum extent permitted by applicable
law.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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STIPULATION OF SETTLEMENT

CV

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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:

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Counsel for Plaintiff

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Counsel for Defendant

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SO ORDERED: U.S. DISTRICT JUDGE