This Agreement ("Agreement") is entered into as of this ___ day of ________ 200__, by and among [Person A or Company A, a __________ corporation], whose address is ___________________ ("A"); and [Person B or Company B ("B"), a __________ corporation whose address is ___________________]. A and B are sometimes referred to collectively as the "Parties" and individually as a "Party."

Recitals

1. A dispute has arisen between the Parties regarding the ____________ (the "Dispute"). The Dispute led to the filing, among other proceedings, of Case No. ______, in the [United States] District Court for the District of _____________ which is currently pending (the "Action").
2. The Parties wish to expeditiously resolve this dispute whether by litigation or some other method. The Parties hereby agree to a private, non-binding and confidential evaluation of their dispute by a neutral advisor pursuant to the process described in this Agreement (the "Process"). The Parties have decided to use the Process because they believe that an early, frank and informed assessment of the Parties' positions might: (i) identify those matters of law and fact that are really in dispute; (ii) assist the Parties in reaching stipulations on matters not in dispute; (iii) provide the Parties with an independent and frank assessment of their cases; (iv) identify approaches for efficient and cost-effective discovery, and, if the Parties consent; (v) permit the Parties to explore the possible settlement of this dispute.
3. The Parties have requested that Joseph P. McMahon of Joseph P. McMahon Jr., LLC ("Mediator") conduct the confidential evaluation of this Dispute, and have set forth herein the procedure for this confidential evaluation.

Agreement

In consideration of the mutual covenants and agreements contained in this Agreement, the Parties agree as follows:

1. The Neutral Advisor Process.
1. The Parties hereby agree to private and confidential assessment of the Dispute conducted in accordance with this Agreement. By signing this Agreement, the Parties have only determined to participate in the Process, and have not committed to compromise the Dispute. Although the selected Advisor and the Parties will be designing a structure for the Process, the Parties have set forth in this Agreement the formal terms upon which they have agreed to the Process and such terms as are necessary, among other things, to provide for confidentiality and protection of the settlement communications.
2. The role of the Advisor in the Process will be confined to assessing the relative merits of the Parties' claims and defenses in [\ (case name or controversy description)]. The Parties and Advisor represent that each has made a diligent effort to ascertain all prior contacts between itself, its employees, agents or attorneys and the Advisor, and that no contacts exist that would interfere with this Process.
3. On or before the date identified in Section 1.6.1, each Party will submit to the Advisor and the other Parties a concise memorandum (collectively the "Memoranda") summarizing the background, present status of the dispute and such other material and information as it deems necessary to familiarize the Advisor with the dispute. The Memoranda will not exceed 20 pages (8½" x 11", double-spaced), describing the issues in the dispute and the Parties' positions with respect to those issues. Where possible, the Parties may agree to jointly submit certain records and other materials. The Advisor may request any Party to clarify any aspect of its position or to provide additional information. The Advisor may raise legal questions and arguments and may request any Party's attorney to brief legal issues.
4. After submission of the Memoranda, the Parties will simultaneously meet with Advisor in a conference in which each Party may present its position regarding the Dispute. The Parties contemplate that the time necessary for all presentations should not exceed ____ hours, excluding any time necessary for questioning by the Advisor. The Parties' presentations may be informal. The Advisor shall moderate the presentations at this meeting, but has no power to limit the scope or substance of the individual presentations. To the extent possible, the Advisor will endeavor to develop from such meetings, by facilitated discussion, an informal agreement as to the definition of the areas of dispute among the Parties. If a Party elects, or upon request of the Advisor, a Party's presentation may include oral statements by witnesses, Party representatives, experts or consultants.
1. [Issues now identified as.....
2. [Advisor may facilitate a meeting after the Parties presentations to clarify, refine or amend the identity of the issues.
5. On or before the date identified in Section 1.6.3, the Advisor will draft his opinions and findings regarding the claims and defenses in [\ (case name or controversy description)], and send a copy to each Party and its counsel. Following receipt of the Advisor's report, the Parties may request the Advisor to schedule a joint conference, which shall be structured by the Advisor with the consent of the Parties. [Alternate: Following the receipt of the Advisor's report, the Advisor will schedule a joint meeting of all Parties on or before the date identified in Section 1.6.4 to discuss the following:
1. Stipulations identifying the factual and legal issues (i) which are in dispute, and (ii) about which the Parties are in agreement;
2. Proposals for a discovery plan for the case;
3. Proposals for a case management proposal to be submitted to the court; and,
4. The propriety of settlement discussions or use of ADR methods for resolution of the dispute.]
6. Because of the need for the prompt initiation of the Process, the Parties and Advisor agree that the following time schedule will apply to the conduct of the Process:
1. Submission of written memoranda to the Advisor pursuant to Section 1.3.
2. Completion of the initial meeting with the Advisor described in Section 1.4 [by date].
3. Advisor's submission of the written report to the Parties by [date].
4. Meeting of the Parties with the Advisor by [date]
7. The Parties will refrain from pursuing administrative and/or judicial remedies during the Process, insofar as they can do so without prejudicing their legal rights. When a Party believes that it must act to protect its legal rights, that Party will inform the other Party of its intent to do so. The Parties will not initiate or pursue discovery during the Process.
8. Except as provided in Section 2.1 below, each Party shall be solely responsible for all costs and fees incurred by it in preparing for and participating in the Process. [Each Party shall be solely responsible for all costs and fees incurred by it pursuant to this Procedure. The Parties have agreed that the Advisor will be compensated at the rate of $____ per hour. Such compensation, and any other costs of the process, will be shared equally by the Parties, unless they otherwise agree. If a Party withdraws but the Process continues, the withdrawing Party will not be responsible for any costs incurred after its withdrawal.
9. The Parties and Advisor now contemplate that the initial meeting described in Section 1.4 will be conducted on [DATE, TIME AND LOCATION]
10. Neither Party is later bound by or limited to claims, defenses, facts or issues presented or discussed in this Process.
11. No subpoenas, summons, complaints, discovery requests or other process or court documents will be served upon any person, entity or its counsel at or near the site of the session.
2. The Advisor.
1. The Advisor will be compensated at the rate of $ ____ per hour [or $______ per day or fractions thereof], for time spent in this Process or preparing for the meetings. Such compensation and other joint costs of holding the sessions, such as meeting room rental, will be shared equally by A and B.
2. While serving, the Advisor, if qualified in a particular area of law by experience, may give the Parties general legal information concerning how the law might affect the decisions the Parties are making in the Process. The Parties agree that such general legal information does not constitute legal advice and that the Advisor's service will not create an attorney-client relationship.
3. The Advisor is not serving as an attorney or advocate for any Party, and will not try to protect the legal rights of any Party. Each Party will seek the advice of their own independent legal counsel during the Process.
4. Except as to willful or wanton misconduct or a violation of Section 4, the Advisor will not be liable for any act or omission in connection with this Process.
3. Party Representatives.
1. For the purposes of this Process, A has appointed [NAME] to serve as its party representative and B has appointed [NAME] to serve as its party representative (collectively and individually the "Party Representative(s)"). Each Party Representative has the authority to participate in the Process on behalf of the Party whom he/she represents.
2. In addition to the Party Representatives identified above, each Party may be represented or accompanied by other persons in the Process, e.g., business executives, general counsel, attorneys or consultants.
4. Confidentiality of the Process.
1. This Agreement and the Process held hereunder are confidential. The Parties and the Advisor will not disclose to third parties confidential information regarding the Process unless compelled to do so by court order. The information which is confidential and privileged as settlement communications includes, but is not limited to, all statements, communications, offers, conduct, findings or conclusions, written submittals, exhibits, demonstrative aids, documents, notes or papers made in preparation for or during the course of, and relating to the subject matter of the Process, whether made by the Advisor, the Parties, their agents, employees, experts, consultants and attorneys (all of the foregoing referred to as "Confidential Information"). All Confidential Information will be treated as compromise and settlement negotiations for the purposes of the Federal Rules of Evidence, the [State] and other state rules of evidence regarding settlement, compromise and mediation confidentiality. Confidential Information will not be admissible in any arbitration, litigation or other proceeding for any purpose, including impeachment.
2. The Parties agree that no actions taken or statements made pursuant to this Agreement or in the Process will be asserted to be the basis for any claim of waiver of attorney-client or work product privilege, or the waiver of confidentiality of business information.
3. The Advisor will be disqualified as a witness, consultant or expert in any pending or future investigation, action or proceeding relating to the subject matter of the Process, including any investigation, action or proceeding which involves persons or entities which are not a Party to this Process (collectively "Subsequent Proceeding").
4. The Advisor and any Confidential Information in the Advisor's possession will not be sought in discovery or subpoenaed from the Advisors by any Party. All Parties will oppose any effort to have the Advisor and documents in the Advisors possession subpoenaed or produced in a Subsequent Proceeding. A Party who receives any such subpoena or document request will promptly notify the other Party.
5. No Party will seek to discover or obtain Confidential Information from another Party in any legal proceeding. All Parties will oppose any effort to have the Confidential Information disclosed in any Subsequent Proceeding. A Party who receives any such subpoena or document request will promptly notify the other Party.
6. Unless otherwise agreed to by the Parties in any written settlement agreement resulting from the Process, a Party may disclose Confidential Information in court pleadings insofar as necessary to enforce the terms of such settlement agreement, but such disclosure of Confidential Information will be in the most limited degree necessary to enforce the settlement agreement.
7. Notwithstanding any of the foregoing provisions of this Section 4, any information that is otherwise discoverable or admissible will not be rendered immune from discovery or inadmissible as a result of its use in the Process. This Section 4 does not bar the disclosure of any communication which reveals the intent to commit a felony or inflict bodily harm, or any communication which is required to be made public by statute. Nor does this Section 4 prevent the Advisor from disclosing the fact the he is or has served as a Advisor in this matter.
5. Disposition of Materials.
1. At the conclusion of the Process, upon the request of a Party that provided documents or other material to the other Parties, the recipients shall return the same to the originating Party without retaining copies thereof.
2. At the conclusion or termination of the Process, the Advisor will destroy all written materials and information provided to the Advisor by the Parties.
6. Agreements in Process. No agreement of any kind reached in the Process or any settlement discussion held with the Advisor [or pursuant to the Process] will be considered final and binding until it has been included in a written settlement agreement reviewed by the Parties' counsel and signed by both Parties.
7. Termination of the Process. The Process is voluntary and non-binding. A Party may withdraw from the Process at any time and without cause after attending the initial meeting described in Section 1.4 above and prior to the execution of a written settlement agreement. A Party may terminate the Process by notifying the other Party[ies] and the Advisor by the most expeditious means available, and will provide prompt written confirming notice thereof. The Advisor may declare the Process terminated if one or more the Parties indicates that they do not intend to participate further. [If the Parties determine to enter into settlement discussions as part of this Process, the settlement portion of the Process may be terminated by the Advisor if it appears that the Parties are in deadlock, and it appears that additional efforts or discussion are not likely to move the Parties beyond deadlock. [Or: The Procedure will continue until: (a) a written agreement concerning the resolution or conduct of the dispute is reached among the Parties; (b) the Advisor concludes and informs the Parties that further efforts would not be useful, or (c) one of the Parties or the Advisor withdraws from the process; provided that if there are more than two Parties, the remaining Parties may elect to continue following the withdrawal of a Party.]
8. Survival. Upon termination of the Process as described in Section 7 above, a Party has no further obligation to participate in the Process or incur additional costs of the Process; provided, however, that the remaining covenants and agreements made by the Parties in this Agreement, will survive the termination of the Process.
9. No Admission, Waiver or Use of Performance. Each Party understands, acknowledges and agrees that the negotiation, execution and performance of this Agreement (collectively "Performance") shall not constitute, or be construed as: (a) an admission of any liability or wrongdoing on the part of any Party, or (b) a waiver by any Party of any claims or defenses it may have. Consistent therewith, each Party further agrees that the other Party’s Performance will not be used or presented in any way in any pending or subsequent legal proceeding.
10. Binding Effect. This Agreement shall be binding on and shall inure to the benefit of the Parties, and the Parties respective successors and assigns; provided, however, that no Party may assign its rights or delegate its duties hereunder hereof without the prior written consent of the other Parties except to an affiliate or in connection with the sale of substantially all of such Party's assets or a merger or consolidation of such Party with or into another corporation; provided further, however, that any such assignee shall agree to be bound by the applicable terms of this Agreement. Any purported assignment in violation of this Section shall be void.
11. Amendment and Waiver. Although the Parties and Advisor are free to flexibly modify the Process to meet the needs of the Parties, the Parties also agree that no modification, amendment, waiver or alteration of the terms of this Agreement shall be effective unless in writing and executed subsequent to the date hereof by all Parties hereto.
12. Interpretation; Construction. If any provision of this Agreement requires interpretation or construction, the Parties agree that this Agreement will be interpreted or construed without any presumption that the provisions of this Agreement are to be strictly construed against the Party which itself or through its agents prepared this Agreement. Rather, it is agreed that the Parties and their respective counsel and other agents have fully and equally participated in the preparation, negotiation, review and approval of all provisions of this Agreement.
13. Effect of Agreement on Third Parties. The covenants the Parties have made in this Agreement do not create any rights for the benefit of any person who is not a Party.
14. Severability. If any provision in this Agreement is held to be invalid or unenforceable on any occasion or in any circumstance, such holding shall not be deemed to render this Agreement invalid or unenforceable, and to that extent the provisions of this Agreement are severable; provided, however, that this provision shall not preclude a court from refusing to sever any provision if severance would be inequitable to one or more of the Parties.
15. Governing Law. The Parties agree that this Agreement will be construed and enforced in accordance with the law of the State of [Name], exclusive of its conflict of law rules.
16. Execution in Counterparts. This Agreement may be executed in two or more counterparts, all of which shall, upon execution and delivery of identical counterparts by all Parties, comprise a single agreement. Counterpart signatures may be exchanged by facsimile and shall be deemed delivered when received by the Party.

In witness whereof, the Parties have executed this Agreement.

Person A/Company A

By

Title

Person B/Company B

By

Title

Joseph P. McMahon, Jr., Advisor