Mediators Better Know How To Contract

two weeks'] advance written notice the attorneys are responsible to see that the mediator is promptly paid fifty percent (50%) of the total mediation fee as an agreed cancellation/rescheduling fee.” LLG also faxed to the attorneys an “Attorney Confidential Information Sheet and Request for Mediation” form (the “mediation request form”) and a “Rules for Mediation” form (the “mediation rules form”).

Sigmon neither completed nor signed the mediation request form. The mediation rules form contained the following paragraph:

CANCELLATION/RESCHEDULING FEE AGREEMENT. ONCE A CASE HAS BEEN SET FOR MEDIATION, THE ATTORNEYS AND THE PARTIES RECOGNIZE THAT THE MEDIATOR'S CALENDAR HAS BEEN RESERVED, AND THEY MUST THEREFORE PROVIDE THE MEDIATOR AT LEAST TWO (2) WEEKS ADVANCE WRITTEN NOTICE OF CANCELLATION/RESCHEDULING. IN THE ABSENCE OF SUCH ADVANCE WRITTEN NOTICE, THE ATTORNEYS AND PARTIES AGREE TO AND SHALL PAY THE MEDIATOR FIFTY PERCENT (50%) OF THE TOTAL MEDIATION FEE FOR THE DAY(S) AS AN AGREED CANCELLATION/RESCHEDULING FEE. THIS RULE ALSO APPLIES TO MEDIATIONS SCHEDULED LESS THAN TWO (2) WEEKS IN ADVANCE OF THE MEDIATION DATE.

Sigmon's client in the underlying suit was unable to attend the mediation in person, but was willing to be available by telephone; Sigmon was available and prepared to attend the mediation on his client's behalf. Fogel objected to the lack of personal attendance by Sigmon's client, and the mediation was cancelled.

In April 2008, LLG filed suit against Sigmon, alleging breach of contract because Sigmon refused to pay the cancellation fee listed in the mediation request form. After generally denying the allegations and asserting several affirmative defenses, Sigmon filed a traditional motion for summary judgment.

In the summary-judgment motion, Sigmon asserted (1) there was no agreement to mediate, either written or oral, (2) he did not agree to be personally obligated for any cancellation or rescheduling fees caused by his client or anyone else, and (3) his client's intended appearance at the mediation via telephone was not a breach of any such agreement. In an affidavit attached to the motion, Sigmon stated, among other things:

• He made no agreement with respect to mediating the underlying suit;
• He made no agreement regarding the amount of or obligation for any cancellation or rescheduling fees;
• He did not reschedule or cancel the mediation;
• Fogel declined to go forward with the mediation when Sigmon's client was unable to physically attend the mediation;
• Neither Sigmon nor his client “accepted, acquiesced, or otherwise agreed to the matters contained in (i) The Levin Law Group, P.C.'s letter of January 29, 2008, (ii) an unsigned pre-printed one page document entitled ‘Rules for Mediation,’ or (iii) a pre-printed uncompleted document entitled ‘Attorney's Confidential Information Sheet and Request for Mediation.’ ”

LLG filed a response to Sigmon's summary-judgment motion, in which it stated:

Sigmon consented to the scheduling of the mediation for February 8, 2008; he received the correspondence of January 29, 2008 with the Rules of Mediation and the Attorney's Confidential Information Sheet and Request for Mediation; he did not object to the terms contained within those documents. Further, he received the January 30, 2008 letter reemphasizing the terms and made no objection.

LLG also attached affidavits from Levin and Levine. In his affidavit, Levin stated that because last-minute cancellations are a “huge problem” for mediators, he had implemented a cancellation policy. He stated that, in his experience, generally “all the attorneys are well familiar with the cancellation policy of this mediator as well as other quality mediators” but he “specifically call