HomeMy WebLinkAboutFort Discovery Joe DAmico Mediation with JAMS- 011618Mediation Agreement
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*-*ip3a is 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 2of5
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 Coun rnmissioners
Jefferson Co ty as g
By:
DaXi4 Sulliwa, Chair Date
ATTEST:
Carolyn allaway Date
Deputy Clerk of the Board
Approved as to form only:
By: /��` ♦ ����
Signature Date
Name:
Title:
JOSEPH D'AMICO
Joseph D'Amico Date
Approved as to form only:
G". C / I 4f Ili'] "Y
Philip C. Hunsucker �, / Da Greg Overstreet ate
Chief Civil Deputy Prosecuting Attorney General Counsel
William L.
MEDIATOR
ing, Mediator
IN 1131jik
Mediation Agreement
Page 5 of 5
An sk
Mediation Fee Schedule
Vio, Hon. William L. Downing (Pet)
PROFESSIONAL FEES
$4,50 per hour
- AN Iraipel e)penses are biled at actual cmt
- Phone or e. -mail Follow-up e*ceecling I how total may be billed at hourly rate.
CASE MANAGEMENT FEE
• The Case Klanagerrsent Fee includes access to an exclusive nationwide panel of judges, attorneys, and other ADR experts,
dedicated services including al administration through the duration of the case, document handling, and use of JAMS conference
facilities including after hours and on-site business support. Weekends and hdidays are subject to additional charges.
• The Case Ktartagernent Fee is reassessed an cases that continue beyond originally scheditiled professional time.
• Professional Fees include tirrie spent for sessions and pre- and post -session reading and research tin -w--.
Mediations
Initial non-talefee of $195, applies to first 10 hours of professional time
Time in excess of initial 10 hours ............ .......................... 12% of Professional Fees
Discovery, Special Waster, Reference, Appraisal and Neutral Analysis Matters
See Neutral's individual g"eral fee schedule
CANCELLATIDNICONTINUANCE POLICY
GancellabonlCbnhnuartce Period Fee
1 day or less .... .................. ... ............ 14 days or more prior to session.._.,... _.._.............. 100% REFUNDABLE, except for time incurred
2 days or more ................ ....... .........3[I days or more prior to session......... ._........... 100% REFUNDABLE, except for time incurred
Sessions af any length __ ...... .........Inside the cancellatiardoonlinuanoe peTiod --------- ...NON-REFUNDABLE
- Unused session tirne, is
- Session fees are non-rel'urKbble if time -scheduled (or a portmn thereof) is cancefed or continued v6hn the cancellation perkW unless the Neuves
time can be rescheduled with another matter. The, cancellation policy exists use time reserved and later cancelled generally cannot be replaced
In all cases involJvng non-refundable firtie, the party causing the continuance or cancella bon is responsible for the fees of all parties.
- A retainer for art impabed preparalion and fb5aw-up tine 5 bded to the pattles- Any unused portion is refunded.
- All fees are due and payaMe upon receipt oF invoice and pagr&wtt wrist be mcerved in advance of session. JAMS reserves the right to cancel your
session if fees are not paid by all pxties by the applicable tartcellabon dale and JAMS confinns the cancellation in writing,
JAMS agreement to render services is with the attorney, the party, andfor affier representatives of the party.
Seattle
www.lamsadr.com - Updated 03M1117
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA REQUEST
TO: Board of County Commissioners
FROM: Philip Morley, County Administrator ,
I
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:
�,
hilip Morle , t-Ad�ra or Date
General Biography
Hon. William L. Downing (Ret.)
Case Manager
Michelle Nemeth
T: 206-292-0441
F: 206-292-9082
1420 Fifth Ave. , Suite 1650 , Seattle , WA 98101
mnemeth@jamsadr.com
As a trial court judge for nearly 28 years, Hon. William L Downing (Ret) brings to JAMS expertise in many different
areas of law. He has handled thousands of cases as a King County Superior Court Judge, and is widely respected
by the legal community as being fair and genuinely neutral.
As a judge, he has concentrated almost exclusively on civil litigation of all types. He has established a reputation as
being hard-working and even-handed but, beyond that, someone with keen insights into the perspectives of the
litigants, the attorneys, and the jury's likely view of a case.
As an author of many high school mock trial exercises, Judge Downing's goal has been to help young people
appreciate the importance of examining any issue from all sides, a skill he employs everyday as a neutral.
In addition to his experience as a jurist and attorney, as Chair of the Bench -Bar -Press Liaison Committee, Judge
Downing has mediated hundreds of disputes involving the balancing of interests involved in access to public
records.
Judge Downing is also a sought-after lecturer and has spoken on topics such as Discovery, Electronic Evidence,
Expert Witnesses, Technology & the Courts, and Trial Practice.
ADR Experience and Qualifications
• King County Superior Court Trial Judge for nearly 28 years
• Mediated hundreds of disputes involving the balancing of interests with regard to access to public records issues
as Chair of the Bench -Bar -Press Liaison Committee for more than 16 years
• Served as Chair of the Washington Pattern Jury Instructions Subcommittee on Medical Malpractice for more than
20 years
o In this capacity and as Co -Chair of the full Committee, he worked to bring experts to consensus about often
difficult legal propositions.
• After handling a series of high profile mass murder cases as a top prosecutor in the 1980s, he joined the bench
and shifted his focus almost entirely to civil litigation.
Representative Matters
Hon. William L. Downing (Ret.) I JAMS Mediator and Arbitrator I General Biography
1420 Fifth Ave. • Suite 1650 • Seattle, WA 98101 • Tel 206-622-5267 • Fax 206-292-9082 • www.jamsadr.com
Page 1 of 4
r'
• Business/Commercial
o Handled allegations of breach of contract, fraud, misrepresentation, tortious interference, trade secret
violations
• Cases have dealt with sales of coffee shops, laundries, and restaurants; dissolution of medical practices, law
firms and architects' partnerships
• Seafirst v. Pretzer, afPd in unpublished opinion, 81 Wn. App. 1053 (1996). Case regarding a creditor's duty
of disclosure to a surety
• Class Action
o Including litigation involving a national retail sales force, delivery drivers, insurance claims processing and
other contexts
• Construction Defect
o Has handled cases involving the building of condos, prisons, and a variety of other types of buildings
• Employment
o Cases have involved the tech industry, maritime industry, restaurants, retail sales, government, with defendants
such as Worldcom, Brusco Tug & Barge, Denny's, Bose, Costco, Gene Juarez, Seattle, and Snohomish County
• Long v. Brusco Tug & Barge, aff'd 185 Wn. 2d 127 (2016)
o Allegations of retaliation for engaging in protected activity regarding handicap discrimination
• family Law
o A wide array of issues involving characterization, tracing, valuation and division
o In re: Marriage of Short, 125 Wn. 2d 865 (1995)
o A landmark case dealing with Microsoft stock options
• Andersen v. King County, 158 Wn. 2d 1 (2006)
o A matter involving a challenge to the Defense of Marriage Act
o Larson v. Calhoun, 178 Wn. App. 133 (2013)
o A case involving hundreds of millions of dollars in assets (including a major league baseball team)
• Personal Injury
o Actions against government entities, nightclubs, private security companies, motorists
o Rollins v. King County, affd 148 Wn. App. 370 (2009)
o Landmark case involving injuries allegedly caused by the interplay between negligence of a defendant and
intentional conduct of a third party
o Montgomery v. Brewhaha, afYd No. 73447-4-I (Wash. Ct. App. Aug. 8, 2016)
o Liability of a nightclub owner for a gun death resulting from lax security screening
• Professional Liability: Medical Malpractice
o Cases involving obstetricians, oncologists, orthopedic surgeons, nurses and other health care providers
o Rufer v. UWMC, 154 Wn. 2d 530 (2005)
o Complex multiparty case involving allegations of product liability and medical negligence leading to an
unnecessary hysterectomy
• Professional Liability: Legal Malpractice
o Cases involving allegations concerning bankruptcy, family law and criminal practices
• Product Liability
o Matters regarding asbestos, automotive passive restraint systems, medical devices, home heaters and other
products
Honors, Memberships, and Professional Activities
• Authored many high school mock trial cases on topics such as whistle -blowing, invasion of privacy, police use of
force and corporate responsibility
• William L. Dwyer Inn of Court
• Washington Pattern Jury Instructions Committee, 1985—present
o Co-chair, 2000-2016
• YMCA High School Mock Trial
o State Program Committee Chair, 1998-2006
• King County District Convener, 1989-2016
• Bench -Bar -Press Liaison Committee, Chair 1999-2016
• Washington State Center for Court Research Advisory Board, 2006-2008
• Distinguished Alumnus, University of Washington School of Law, 2008
• WSBA President's Initiative ("Foundations of Freedom"), 2006-2007
• Robert F. Utter Award, YMCA Youth & Government, 2007
• Outstanding Judge Award, King County Bar Association, 2006
• Judge of the Year, American Board of Trial Advocates (Washington Chapter), 2006
Hon. William L. Downing (Ret.)I JAMS Mediator and Arbitrator General Biography
1420 Fifth Ave. • Suite 1650 • Seattle, WA 98101 • Tel 206.622-5267 • Fax 206-292-9082 • www.jamsadr.com
Page 2 of 4
• YMCA Youth & Government Board of Directors, 1999-2006
• Judge of the Year, Washington State Trial Lawyers Association, 2005
• Jurist of the Year, Washington State Bar Association Family Law Section, 2005
• Judge William Nevins Award for Distinguished Service in Public Legal Education, Washington Judges
Foundation, 2001
• Superior Court Judges' Association Civil Law & Rules Committee
o Chair, 1998-2000
Selected Publications
• "When 'the client' is all the faceless people," Seattle Times, May 30, 1989
• "Professor favors judges who love literature," Book Review, Trial News, May 1996
• "Profile: Justice James M. Dolliver," Bar Bulletin, Dec. 1998
• "Press and courts working together benefits all," Seattle Times, June 23, 2000
• "Skip the LSAT & Bag the Bar," Book Review, Jurist, December 2000
• "Why do Mock Trials? Good Question!," National High School Mock Trial Newsletter, Fall 2004
• "New rule means courtroom cameras will get their day in court," Seattle Times, December 30, 2oo4
• "American Justice Soiled?," Book Review, Bar Bulletin, June 2005
• "March of the Plea Bargains," Book Review, WSBA Bar News, March 2006
• "My Judicial Detachment," The Marshall Project, January 5, 2015
• "Probing for Sense Beneath a Senseless Seattle Crime," Book Review, NWLawyer, February 2016
Selected Speaking Engagements
• "Ethical & Effective Advocacy," Washington Attorney General Conference, Tumwater, November 16, 2016
• "Law & Medicine," WSAJ, Seattle, November 3, 2016
• "Building Trial Skills," NITA, Seattle, September 11, 2016
• "Jury Selection," WSAJ, Suncadia, June 16, 2016
• "Lessons from the Bench," KCBA YLD, Seattle, June 14, 2016
• "Court -Media Relations," AOC, January 29, 2016
• "Poetry & the Law," Port Townsend Salon Series, January 22, 2016
• "Best Courtroom Practices," WDTL, Seattle, December 3, 2015
• "Deception in the Courts," Seattle University, November 24, 2015
• "Technology in the Courtroom," American Academy of Matrimonial Lawyers, March 23, 2015
Background and Education
• Judge, King County Superior Court, 1989-2017
• (Senior) Deputy Prosecuting Attorney, King County, 1978-1989
• Deckhand: American Commercial Barge Line (New Orleans, LA), Federal Barge Line (New Orleans, LA), FN Patti
Lu (Blaine, WA), 1973-1975
• J.D., University of Washington School of Law, 1978
• B.A., Vassar College, 1971
Disclaimer
Hon. William L. Downing (Ret.) I JAMS Mediator and Arbitrator General Biography
1420 Fifth Ave. • Suite 1650 • Seattle, WA 98101 • Tel 206-622-5267 • Fax 206-292-9082 • www.jamsadr.com
Page 3 of 4
0;
This page is for general information purposes. JAMS makes no representations or warranties regarding its accuracy
or completeness. Interested persons should conduct their own research regarding information on this website
before deciding to use JAMS, including investigation and research of JAMS neutrals. See More
Hon. William L. Downing (Ret.) I JAMS Mediator and Arbitrator General Biography
1420 Fifth Ave. • Suite 1650 • Seattle, WA 98101 • Tel 206-622-5267 • Fax 206-292-9082 • www.jamsadr.com
Page 4 of 4
CD
0�$ON,.,co`��O
January 17, 2o18
Board of County Commissioners
1820 Jefferson Street
PO Box 1220
Port Townsend, WA 98368
Kate Dean, District 1 David Sullivan, District 2 Kathleen Kler, District 3
Hon. William L. Downing (Ret.)
Case Manager
142o Fifth Ave. Suite 165o
Seattle, WA 981o1
AGREEMENT re: Mediation; Jefferson County, Joseph D'Amico/Fort Discovery Corporation, JAMS
Dear Mr. Downing,
Please find enclosed is a check for the required fee(s) = s195.00.
Enclosed also is a W-9 Form. Please fill it out in its entirety.
Enclosed are three (3) Original Contracts re: Mediation; Jefferson County, Joseph D'Amico/Fort
Discovery Corporation, JAMS
Please sign all three (3), keeping one Original for your records.
Please return the remaining two (2) Originals for our records and the W-9 Form to the following
address:
Jefferson County Commissioners Office
Attn: Julie Shannon
PO Box 1220
Port Townsend, WA. 98368
Please contact our office if you have any questions.
T ank yo
ann
Executive Secretary II
360 385 9100
jshannon(a)co.jefferson.wa.us
Enclosure
Phone (360) 385-9100 Fax (360) 385-9382 jeffbocc@co.jefferson.wa.us
Mediation Agreement
Page 5of5
Mediation Fee Schedule
Hon. Wiffiam L. Downing (Ret)
PROFESSIONAL FEES
5450 per hour
. A4 enamel eases am billed at act cost
. Phone or e-mail exces&V 1 hoar total anay be (tilled at hourly rate.
CASE MANAGEMENT FEE
a Time Case Management Fee ides access to ars exclusive nationwido panel of judges. attorneys. and cattier ADR experts,
dedicated services including all adninistration through the duration of time case, document handlikV. and use & JAMS corm#erenae
facilities g ager hours and on-site business support. Weekends and holidays arc subject to additional charges.
+ The Case Management Fee is reassessed on eases that court nue beyond originally scheduled professional tirne.
s Professional Fees include tiane spent for sessions and pre- and post -session readwV and research ore..
Mediations
Initial norm -refundable fee of $195, applies to first 10 hours of prolessionai time
Trine in excess of initial 10 hours ......... ..........................._.-"".......""_.........12% of Professional Fees
CANCELLATION/CONTINUANCE POLICY
C.anceNeSoWConftiance F%rind Fee
1 day or less ....... ....................... ............. 14 days or more prior tosession....""..".._............100 6 REFUNDABLE, except for tines incurred
2 days or more ........ .......... ...................30 days or rrrrare prion to session. ....................... 100 REFUNDABLE, except for bene incurred
Sessioxns of any length ......... ".............. Inside the cancefilationicorrInuance period. -......... NOWREFUNDABLE
* Lkmned sessiwn finwe is .
• Session fees are if time scheduled (or a portion of) is camaged or conlinited within the camebtion period unless tine Neutrairs
linins can be resclieduled with anotw maker. The cancellation pobW ands because time n erved and bier cancelled generally cam%* be replaced,
In all cases irwokft nonqvIlaxiable, tine, itis party causing the cortknonce or canoWlation is responsible for Via bees of a1 parties.
• A retaauer for artcqmikd preparaliortand lollow4ip tirrie is billed to the parties. Airy unused portion is mended.
• All fees are dace and payable upon receipt of nw m and payment must be received in advance of sem=L JA AM reserves the right to cmrml your
session if fess ane no paid by all parties by the date and JAM comfinns the canodation in
INVO A A HO � ;T
Si Date f % l
n ress
Invoice/PO #
Amount $
Account # *01 -:�% ODD • EA e;1 Q
Project/Grant/WO
JM4S agmmnernt to render services is with time attorney, the patty. andlor other representatives of the party.
Seattle
www.iamsadr.00m - Updated 031(11117
to
VENDOR NO. JA1 1 5
CHECK DATE 01 / 17 /2 018 CK. NO. 167616
INVOICE NO.
INVOICE
DATE
-
DESCRIPTION
INVOICE
AMOUNT
DISCOUNT
NET AMOUNT
MEDIATION 1/18
Ol/17/18INITIAL
D'AMICO ME
195.00
0.00
195.0
*HC* JAMS SEATTLE RESOLUTION CENTER
195.00
0.00
195.0
JEFFERSON COUNTY
STATE of WASHINGTON 1ST SECURITY BANK 98-8228/3251
PORT TOWNSEND, WA 98368 CLAIMS CLEARING
CHECK DATE CHECK NO. AMOUNT
01/17/2018 167616 $195.00
PAY ONE HUNDRED NINETY FIVE DOLLARS AND 00 CENTS
TO THE JAMS SEATTLE RESOLUTION CENTER
ORDER
OF 1420 FIF`PH AVE
SUITE 1650 \ n�•R.v�
SEATTLE, WA 98101 AUTHORIZED SIGNATURE
11'0000 16 76 1611' I: 3 2 5 L8 2 2891: 5 L S09 34 L800