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Mediation Process
"ATTACHMENT A"
MEDIATION PROCESS
1. Purpose of Mediation. This clause provides for the use of Mediation as an alternative means of resolving disputes which may arise under this Agreement. The Mediation allows parties to make an educated assessment of their respective cases, and then engage in a negotiated settlement discussion. Such a procedure can save both parties valuable time, resources, and legal costs. Should a Mediation be utilized, a Mediation Agreement shall be drafted and adopted which will set forth the governing procedures and terms.
2. When to Invoke Mediation. If a dispute arises under the Agreement, either party may invoke this Mediation clause which will compel participation in Mediation for the purpose of resolving the dispute, provided all of the following conditions have been fulfilled:
a. The amount in controversy exceeds twenty thousand dollars ($20,000.00), such amount having been determined by both parties as being the minimum disputed claim to justify use of the Mediation procedure;
b. Personnel from each party who were directly involved in the dispute at the operational level met and discussed the claim in good faith, but were unable to resolve the matter. The personnel of each party shall prepare and forward to the persons identified in the subparagraph 2(c) memorandum detailing the areas of dispute, why impasse was reached and that it is beyond their ability to resolve the dispute.
c. After complying with the subparagraph above, personnel from each party at a higher management level who were not directly involved in the dispute met and discussed the claim in good faith, but were unable to resolve the matter. The personnel of each party shall prepare and forward to the persons identified in paragraph 3 a memorandum detailing the areas of dispute, why impasse was reached and that it is beyond their ability to resolve the dispute; and
d. Written notice was given to the other party stating that the above three subparagraphs were complied with, and that the Mediation procedure is being invoked for the purpose of resolving the dispute.
3. Notice of Mediation. Notice of Mediation shall identify the dispute at issue and designate an executive officer or other management official who will represent the party at the proceeding. The designated official must possess the authority to settle the matter and have not been involved in the underlying facts in dispute.
4. Response to Notice of Mediation. Within 10 business days, the other party shall designate an appropriate official with authority to settle the dispute who will be its representative at the Mediation.
5. Scheduling. No later than 30 days from the date of the notice of the Mediation, the parties' designated representatives and/or their attorneys shall meet to discuss the following:
a. Settlement status of the dispute;
b. Schedule by which drafts of a Mediation Agreement are to be submitted, and a date by which the Mediation Agreement will be finalized;
c. Schedule for Mediation discovery and other preparatory matters the parties deem necessary;
d. Whether a neutral advisor shall be employed in the Mediation and, if so, by what means he shall be selected; and
e. Time, place, and schedule of the Mediation hearing.
The Mediation Agreement will be finalized and executed by both parties no later than 60 days after the notice of the Mediation. The Mediation hearing will be held within 120 days after the notice of the Mediation unless extended by mutual consent of the parties.
6. Mediation As Condition Precedent To Arbitration or Litigation. Submission of a dispute under this Agreement to a Mediation procedure shall be a condition precedent to filing arbitration or litigation on any dispute exceeding the amount specified above. Failure to comply with this condition precedent shall be in contravention of the parties' express intention to implement this alternative means of dispute resolution and constitute a breach of this clause.
7. Refusal To Participate In Mediation. Refusal of a party to participate in mediation in good faith shall not be established unless:
a. All of the specified conditions set forth in paragraph 2 herein have been fulfilled, and
b. 30 days have lapsed since initial written notice of the Mediation was given without an affirmative response.
c. Refusal to participate in the Mediation shall be in contravention of the parties' express intention to implement this alternative means of dispute resolution and constitutes a breach of this clause.
8. Filing Arbitration or Litigation. No litigation or arbitration or any other binding action shall be initiated by either party unless:
a. The amount in controversy is less than or equal to the amount specified paragraph 2 above; or
b. Despite compliance with this Mediation clause, one party is deemed to have refused (paragraph 7 above) to participate in the Mediation; or
c. Both parties agree in writing that they intend not to implement the Mediation for the particular dispute in question; or
d. The Mediation procedure has been completed and 30 days have elapsed since the actual Mediation hearing; or
e. Litigation must be filed before the Mediation to comply with the Statute of Limitations on a disputed issue.
9. Dismissal/Stay Of Litigation. If one party has filed litigation on a dispute which is otherwise covered by this Mediation clause and which does not meet the exceptions set forth in paragraph 8 herein, the other party may properly seek to dismiss the litigation at its discretion for the purpose of conducting the Mediation as a condition precedent to litigation. If litigation was filed for the purpose set forth in subparagraph 8(e) herein, the filing party shall seek a stay for the purpose of conducting a Mediation. The stay provided for in this Paragraph shall continue for a period of 30 days after completion of the Mediation hearing. The purpose of this 30-day period is to permit the parties full opportunity to discuss settlement.
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