NEW JERSEY DEPARTMENT OF TRANSPORTATION
 STEP IV  NON-BINDING MEDIATION AGREEMENT WITH CONSULTANT’S PARTICIPATION

		THIS AGREEMENT (hereinafter “this Mediation Agreement”) is made this _____ day of _______________, 20___ , between ________________ (hereinafter "the Contractor"),  ________________ (hereinafter “the Consultant”), and New Jersey Department of Transportation (hereinafter "the NJDOT")  (the Contractor, the Consultant, and the NJDOT in this Mediation Agreement will be collectively referred to as “the Parties”).  
W I T N E S S E T H:
		WHEREAS, the Contractor contracted with the NJDOT to construct a project in the ________________________________________ (insert location of the project), commonly known as ___________________________________________ (hereinafter "the Project") and the Consultant was engaged by the NJDOT to provide services regarding the Project; and 
	WHEREAS, the Contractor has submitted a claim or claims to the NJDOT for resolution through the NJDOT’s Contractual Claim Resolution Process afforded under the Parties’ Contract (hereinafter “the Contract”) and Specifications applicable to the Project under which the Contractor has submitted a claim, and N.J.A.C. 16:45-1.1, et seq.; and 
	WHEREAS, in an effort to resolve the Contractor’s claim or claims arising from the Project, in an attempt to avoid the burden and expense of litigation, and without waving any of the Parties’ claims or defenses, the Parties have agreed to participate in Step IV of the Contractual Claim Resolution Process, Non-Binding Mediation (hereinafter “the mediation”), pursuant to the procedures set forth in this Mediation Agreement, the contracts for the Project between the Parties, and N.J.A.C. 16:45-1.1, et seq.;  
	NOW, THEREFORE, in consideration of the forgoing and for good and valuable consideration, the Parties agree as follows:
	1.	As between the Contractor and the NJDOT, this mediation is the final step of the NJDOT’s Contractual Claim Resolution Process. As such, there will be no further administrative contract review by the NJDOT of any contract disputes that remain unresolved between the Contractor and the NJDOT regarding the Project.
	2.	The use of the mediation by the Parties does not change any of the requirements of the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1, et seq. (hereinafter “the Contractual Liability Act”), including but not limited to N.J.S.A. 59:13-5.  
	3.	The mediation shall not constitute a waiver by the Parties of any claim or defense otherwise available in any subsequent legal action, including any defense by the NJDOT that any claim or part of a claim fails to comply with the notice provisions of the Contractual Liability Act or of the Specifications applicable to the Contract under which the claim or claims arise.
		4.	The Parties will bear their own costs to participate in the mediation, including the costs for experts, attendees, graphics or otherwise, except that the costs for the services of the mediator and for the neutral site to conduct the mediation sessions will be borne in equal proportions by the Parties; the Contractor, the Consultant, and the NJDOT will each pay its share of such costs directly to the provider.
		5.	To encourage full disclosure and the free exchange of information and positions, the mediation will be treated like a settlement negotiation such that, except to the extent required by law, any settlement proposal discussed or offered during the mediation will not be discoverable in any legal action regarding the Contractor’s claim or claims submitted as part of the mediation.  This protection will not apply to the Project’s records or documents generated during the Project or before the signing of this agreement which do not enjoy some statutory or other immunity or privilege, that are submitted in or utilized during the mediation; however, this protection will apply to any summaries, analyses or other work product generated by the Parties, or their representatives, in furtherance of the mediation and after the date that this Mediation Agreement is fully executed, whether generated at the direction of counsel or otherwise.  In addition, the mediator cannot be deposed and cannot be subpoenaed to testify or to produce documents in connection with any legal action instituted to pursue the claim or claims under review in the mediation, except as may be required by law.
		6.	The process for selecting a mediator shall be in conformance with the specifications applicable to the Contract for the Project and the New Jersey Administrative Code.  
		7.	The mediator is subject to any approval requirements of N.J.S.A. 19:44A-20.13, et seq., or any other requirements of the Treasurer or other officials of the State of New Jersey.
		8.	Upon selection of the mediator and the return of this Mediation Agreement as fully executed, the Secretary of the NJDOT’s Claims Committee will schedule a meeting for the mediation.
		9.	Generally, the mediator will determine the procedures to be utilized prior to and during the mediation, except that the Parties agree to the following, which the mediator will adhere to:    
		(a).	Documents submitted to the mediator shall include the Contractor’s claim package submitted to the Claims Committee along with the position of the NJDOT up through the Claims Committee.  
		(b).	The only discovery allowed before or during the mediation will be an  exchange of non-privileged documents (the “Documents”) pursuant to the following procedure: Within 10 calendar days after execution of this Mediation Agreement, the Parties may serve demands for Documents upon the other parties, itemizing particularly those documents they want to inspect. The Parties shall have the right to inspect and copy any Documents produced by any other Party. The New Jersey Rules of Court regarding document discovery will govern the breadth of such demands.  Any dispute regarding particular demands will be submitted on an expedited basis via telephone conference to the mediator for resolution.  All responsive Documents, including expert reports in support of the Contractor’s claims, will be made available for inspection within 30 calendar days after the service of the document demand and copies of requested Documents will be delivered to the requesting Party within 20 calendar days thereafter.  The requesting Party will pay the actual, fair and reasonable costs to reproduce the requested documents.  However, the Parties shall have the right to claim any privilege as recognized under New Jersey law.
		(c).	By no later than a date to be set by the mediator, the Contractor will submit to the mediator and to the NJDOT a detailed statement of its factual and legal position (hereinafter “the Mediation Position Statement”), which must identify and list any Project records or other documents that support the Contractor’s position.  The Contractor must attach to the Mediation Position Statement a copy of any supporting documents that have not been already disseminated to the NJDOT as part of the Contractor’s submission to the Claims Committee. 
		(d)	Within 10 working days after receiving the Contractor’s Mediation Position Statement, the Consultant will serve its responding Mediation Position Statement with copies of any supporting documents.	
		(e).	Within 10 working days after receiving the Contractor’s Mediation Position Statement, the NJDOT will serve its responding Mediation Position Statement with copies of any supporting documents.	
		(f).	A person with settlement authority from each of the Parties must attend and remain present during the entire mediation.  However, regarding the NJDOT, the Commissioner of Transportation needs to approve any settlement offer; therefore, although a person with settlement authority on behalf of the NJDOT may extend a tentative settlement offer during the mediation, that tentative settlement offer is subject to the approval of the Commissioner of Transportation.  
		(g).	Each of the Parties may have up to 15 attendees, including counsel and any experts. The Parties by mutual agreement may limit or increase the number of attendees.
		(h).	The principals, rather than the Parties’ attorneys, shall make the presentations and conduct negotiations in open sessions.  However, the mediator may request input from any attendee during such sessions. The Parties’ attorneys may make presentations based upon the Parties’ mutual agreement. No restrictions apply during private sessions with the mediator, except that the mediator may limit the number of individuals representing a party during the negotiation phase.  
		(i).	At the request of a Party in private session, the mediator will disclose to the Party the mediator’s evaluation of that Party's position in the non-binding mediation, as well as the positions of the other Party.
		(j).	Two days of the mediation will be scheduled to be conducted no later than a date to be decided by the mediator, unless such time is extended by the mutual consent of the Parties. During the morning of the first day of the mediation, the Contractor will make a presentation of its position.  During the afternoon of the first day of the mediation, the NJDOT will make a presentation of its position.  Upon completion of the presentations during the first day of the mediation, the mediator may commence settlement negotiations. The second day of the mediation shall be used for settlement discussions with the mediator. These time frames for presentations and settlement discussions may be extended with the mutual consent of the Parties.
		10.	By entering into this Mediation Agreement, the Parties agree to participate in a minimum of two full days of the mediation (defined as a minimum eight hour day or longer as determined by the mediator).  If the matter does not settle after the two days, either Party may provide notice to the other that it is terminating its participation in the mediation under this Mediation Agreement.  The Parties may also agree to extend the mediation beyond the initial two days. 
		11.	Recommendations by the mediator shall not be binding on the Parties and shall not be evidential in any future legal proceeding between or among the parties.  The mediator will not issue written recommendations.
		12.	The NJDOT may ask the Secretary of the NJDOT’s Claims Committee to attend the mediation as a non-participant.  As such, the Secretary will attend to procedural duties during the session and will be responsible for any administrative work required to memorialize the mediation result.
		13.	The mediation shall conclude upon reaching a settlement, reaching a mutual decision that no settlement will be forthcoming, or upon one of the Parties terminating its participation as permitted hereinabove.
		14.	If the Parties reach an agreement at the mediation, the agreement will be forwarded for the NJDOT’s approval.
		15.	If a third party seeks production of any documents that are exempt from disclosure (as a result of having been used, referenced in, or prepared for in connection with the mediation) through the New Jersey Open Public Records Act, N.J.S.A. 47:1A-1, et. seq., subpoena, or discovery in a subsequent court proceeding, the Parties agree to immediately notify each other of this request in order to give each others the opportunity to protect their rights in court with regard to the third party’s attempt to obtain the production of said documents.
		16.	The Parties by mutual agreement may allow additional entities to participate in the mediation, if those entities agree to be subject to the terms of this Mediation Agreement. However, the participation of those entities in the mediation will not create or waive any claims or defenses on behalf of those entities and the Parties.  
		17.	This Mediation Agreement may be executed in multiple originals, each with the same force and effect as the original.
		18.	The undersigned representatives of the Parties each warrant that they have the full authority to enter into a binding agreement on behalf of that entity and agree to be bound to the terms of this Mediation Agreement to the extent such terms apply to them.  
		19.	This Mediation Agreement shall not become effective until the date that the Commissioner of Transportation or his designee approves and executes this Mediation Agreement.
		IN WITNESS WHEREOF, the Parties hereto agree to the forgoing:  
NAME OF CONTRACTOR  

Contractor: __________________________

By:_________________________________					
____________________________________
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____________________________________
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NAME OF CONSULTANT  

Consultant: __________________________

By:_________________________________					
____________________________________
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____________________________________
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NEW JERSEY DEPARTMENT OF 	TRANSPORTATION
				By:_________________________________					
____________________________________
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____________________________________
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