HomeMy WebLinkAbout011618_ra01JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA REQUEST
TO: Board of County Commissioners
FROM: Philip Morley, County Administrator
l4w
DATE: January 16, 2018
RE: AGREEMENT re: Mediation; Jefferson County, Joseph D'Amico/Fort
Discovery Corporation, JAMS
STATEMENT OF ISSUE: Approve a Mediation Agreement with JAMS, an alternative
dispute resolution service, to provide mediation services for Jefferson County and Joseph
D'Amico/Fort Discovery Corporation.
ANALYSIS: Mediation can provide a successful alternative to expensive litigation, and afford
solutions to disputes that provide different results than court judgements which may simply find
for one side or the other. The dispute in question resulted from the passage by the County of
Ordinance No. 05-1218-17 on December 18, 2017, establishing a moratorium for up to one year
on applications for modifying existing or establishing new commercial shooting facilities to
allow Jefferson County time to consider adopting appropriate regulations to address the safety,
environmental and land -use impacts of such commercial shooting facilities, and the Ordinance's
effect on Joseph D'Amico's/Fort Discovery Corporation's business plans for property located
near Tarboo Lake. Attempting mediation of this dispute has been recommended by the
Prosecuting Attorney's Office.
FISCAL IMPACT: The JAMS fee schedule is part of the proposed Mediation Agreement.
Under the proposed Mediation Agreement, the two parties (Jefferson County and Joseph
D'Amico/Fort Discovery Corporation) will share all mediation costs 50/50. Jefferson County's
50% share of the total JAMS mediation cost will depend on the number and length of mediation
sessions, and the amount of written materials submitted to the mediator. We expect our cost
share to be a fraction of the $40,000 contingency for Legal -Special Attorney Fees that is already
included in the 2018 Jefferson County Non -Departmental Budget.
RECOMMENDATION: Approve the proposed Mediation Agreement.
REV + WE BY:
Whili-ppMorle , ety-Pcelmirtistra or Date
Mediation Agreement
1 Participants and Procedure.
1.1 The parties to this agreement are Jefferson County, Washington, Fort Discovery
Corporation, and Joseph D'Amico. The mediator is William L. Downing of JAMS.
1.2 This mediation shall be conducted pursuant to Chapter 7.07 RCW.
1.3 The parties, and if they desire, their representatives are invited to attend mediation
sessions. No one else may attend without the permission of the parties and the consent of
the mediator.
1.4 During the session, the mediator may have joint and separate meetings with the parties and
their counsel. If a party informs the mediator that information is being conveyed to the
mediator in confidence, the mediator will not disclose the information. The parties agree
that the mediator is not acting as an attorney or providing legal advice on behalf of any
party.
1.5 If a party wishes to terminate its participation for any reason, it may do so by giving notice
to the mediator and the other parties. The parties will continue to be bound by the
confidentiality provisions of this agreement and will also continue to be bound by their
agreement to pay for those services rendered up to the point of that party's withdrawal.
2 Disclosure.
2.1 The mediator, each party, and counsel confirm that they have disclosed any past or present
relationship or other information that a reasonable person would believe could influence
the mediator's impartiality and that no conflict of interest or appearance of a conflict of
interest exists.
2.2 In addition, the mediator practices in association with JAMS. From time to time, JAMS
may enter into arrangements with corporations (including insurance companies),
government entities, and other organizations to make available dispute resolution
professionals in a particular locale, for a specific type of matter or training, or for a
particular period of time. Also, because of the nature and size of JAMS, the parties should
assume that one or more of the other neutrals who practice with JAMS may have
participated in an arbitration, mediation or other dispute resolution proceeding with the
parties, counsel or insurers in this case and may do so in the future. Furthermore, the
parties should be aware that each JAMS neutral, including the neutral in this case, has an
Mediation Agreement
Page 2 of 5
economic interest in the overall financial success of JAMS. The mediator is not aware of
any aspect of these relationships that would create a conflict or interfere with his/her acting
as a mediator in this matter. The parties acknowledge that these factors do not constitute a
conflict of interest or the appearance of a conflict of interest.
3 Confidentiality.
3.1 In order to promote communication among the parties, counsel and the mediator and to
facilitate settlement of the dispute, each of the undersigned agrees that the entire mediation
process is confidential.
3.2 All statements made during the course of the mediation are privileged settlement
discussions, and are made without prejudice to any party's legal position, and are
inadmissible for any purpose in any legal proceeding.
3.3 These offers, promises, conduct and statements (a) will not be disclosed to third parties
except persons associated with the participants in the process, and (b) are privileged and
inadmissible for any purposes, including impeachment, under Rule 408 of the Federal
Rules of Evidence, Washington Evidence Code Section 408 and any applicable federal or
state statute, rule or common law provisions.
4 Disqualification of Mediator and Exclusion of Liability.
4.1 Each party agrees to make no attempt to compel the mediator's or any JAMS employee's
testimony, nor to compel the mediator or any JAMS employee to produce any document
provided by the other party to the mediator or to JAMS.
4.2 The parties agree to defend the mediator and JAMS from any subpoenas from outside
parties arising out of this Agreement or mediation. The parties agree that neither the
mediator nor JAMS is a necessary party in any arbitral or judicial proceeding relating to
the mediation or to the subject matter of the mediation.
4.3 Neither JAMS nor its employees or agents, including the mediator, shall be liable to any
party for any act or omission in connection with any mediation conducted under this
Agreement.
5 Records.
Any documents provided to the mediator by the parties will be destroyed by JAMS 30 days after
the conclusion of the mediation, unless JAMS is otherwise instructed by the parties.
Mediation Agreement
6 Fees.
Page 3of5
The parties and their attorneys agree to pay JAMS as set forth in the attached Fee Schedule,
which is incorporated in this Agreement. The parties agree to share JAMS invoice amounts
50/50, and each party will be responsible for timely paying their 50% share directly to JAMS.
(SIGNATURES FOLLOW ON NEXT PAGE)
Mediation Agreement
Page 4of5
PARTIES
JEFFERSON COUNTY WASHINGTON FORT DISCOVERY CORPORATION
Board of County Commissioners
Jefferson County, Washington
M
David Sullivan, Chair
SEAL:
ATTEST:
Carolyn Gallaway
Deputy Clerk of the Board
Approved as to form only:
Date
Date
Y,
Signature Date
Name:
Title: Jlli%-["dam'
JOSEPH D'AMICO
oe
��
Joseph D'Amico Date
Approved as to form only:
�� /,r /t4 t i ! I
Philip C. Hunsucker Ua Greg Overstreet Efate
Chief Civil Deputy Prosecuting Attorney General Counsel
MEDIATOR
William L. Downing, Mediator Date
Mediation Agreement
Page 5 of 5
Mediation Fee Schedule
Hon. William L.. Downing (Ret)
PROFESSIONAL FEES
$4,50 per hour
- Ail travel expenses are billed at actual ocst,
- Ptxm* or e-mail f exceeding I hour toW may be billed at hourly roe.
CASE MANAGEMENT FEE
• The Case Manage rroent Fee includes access to an exclusive nationwide panel of judges, attorneys, and other ADR experts,
dedicated services including aM administration through the duration of the case, document: handling, and use of JAMS conference
facillities including after hours and on-site business support- Weekends and holidays are subject to a charges.
• The Case Management Fee is reassessed on cases that continue beyond originally scheduled professional time.
• Professional Fees include tirre spent for sessions and pre- and post -session reading and research lime.
Mediations
Initial non-refundable fee of $195, applies to first 10 hours of professional time
Time in excess of initial 110 ours.__...... _ ...... _ .......... ....................... 12% of Professional Fees
Discovery, Special Master, Reference, Appraisal and Neutral Analysis Maftm
See Neutral's indhOdual general fee schedule
CANCELLATIONICONTINUANCE POLICY
GanceflationlCkmfinuancePeriod Fee
1 day or less . ............................. _.__14 days or more prior to session .................... 100% REFUNDABLE, except for time. incurred
2 days or more ................. _ ..............39 days or more prior to session.......... ._..... 100% REFUNDABLE, except for time incurred
Sessions of any ......_..Inside the cancellationicontinuance period. ..NON-REFUNDABLE
• Li-Amed session tine , as norbqefurdat4.
• Session fees are non-reltutdable if time scheduled (or aporton thereof) is cancelled or continued within the cancellation period unless the NeueaFs
time can be rescheduled wth another matter The cancellaton policy ex�sh because Wne reseryed and later cancelled generally ownot be replaced.
In all cases involvmg non-rehmdable Wne. the party causmV the confirKwoe or cancellabon is responst& for the fees of all parties
• A retainer for anpated preparation and folun-up tine is bled to the parties, Any unused portion 5 refunded,
• All fees are due and payable upon reoeipt of inyorce, and payawt must be received in advance of sessim. JAMS reserves the tight to cancel your
session if fees are not paid by all patties by the applicable cancellation date and JAMS omSmis the cancellation in wrifirtg,
JAMS agreement to render services is with the attorney, the party, andfor other representatives of the party.
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