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If the parties do not wish to negotiate in advance of arbitration, but do wish to mediate before proceeding to arbitration, they may

accomplish this through use of the following language:


The parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted
to mediation, and if the matter is not resolved through mediation, then it shall be submitted to final and binding arbitration
pursuant to the clause set forth in Paragraph 5 below.
Either party may commence mediation by providing to the other party a written request for mediation, setting forth the subject of
the dispute and the relief requested.
The parties will cooperate with one another in scheduling the mediation proceedings. The parties agree that they will participate
in the mediation in good faith and that they will share equally in its costs.
All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties,
their agents, employees, experts and attorneys, and by the mediator are confidential, privileged and inadmissible for any purpose,
including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise
admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration
at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for
mediation, whichever occurs first ("Earliest Initiation Date"). The mediation may continue after the commencement of arbitration
if the parties so desire.
At no time prior to the Earliest Initiation Date shall either side initiate an arbitration or litigation related to this Agreement except
to pursue a provisional remedy that is authorized by law or by agreement of the parties. However, this limitation is inapplicable
to a party if the other party refuses to comply with the requirements of Paragraph 3 above.
All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest
Initiation Date. The parties will take such action, if any, required to effectuate such tolling.

ARBITRATOR's QUALIFICATIONS
It is common for a contract clause to require that one or more of the arbitrators have certain specified qualifications. In drafting
such a provision, care should be taken that such necessary qualifications not be too detailed and specific since a highly detailed
list of required qualifications can significantly narrow the number of available, competent and qualified arbitrators.
Specification of arbitrator qualifications often works best in the context of a three-arbitrator panel since it is possible in that
setting to require that one of the panelists have a certain technical expertise without limiting the entire panel to so narrow an area
of experience. In this way, it is possible to ensure that the desired technical expertise is represented on the panel while at the same
time assuring that the chair of the panel has extensive experience in the entire arbitration process.
If the arbitration is to be conducted by a sole arbitrator, the contract clause might provide that the arbitrator must be:
A retired judge from a particular court; or
A lawyer with 10 years of active practice in a specified area, such as construction or computer technology.

If the arbitration is to be handled by a three-arbitrator panel, the contract clause might provide:
That the Chair be an attorney with at least 20 years of active litigation experience; or
That the Chair be a retired judge from a particular court; or
That one of the wing arbitrators be an expert in an area such as construction or be an accountant or a particular type of engineer;
or
That the Chair must previously have served as Chair or sole arbitrator in at least 10 arbitrations where an award was rendered
following a hearing on the merits.

Note: The foregoing are just examples. The point is that the qualifications of the arbitrator(s) should be considered at the time
when the contract clause is drafted.
PARTY-APPOINTED ARBITRATORS
It is a common practice for each side to appoint an arbitrator and for the two party-appointed arbitrators to then appoint the Chair
of the panel.The party-appointed arbitrators "shall be neutral and independent of the appointing Party unless the Parties have
agreed that they shall be non-neutral." Set forth below is a clause that effectively provides for party-appointed arbitrators:
Within 15 days after the commencement of arbitration, each party shall select one person to act as arbitrator, and the two so
selected shall select a third arbitrator within 30 days of the commencement of the arbitration. If the arbitrators selected by the
parties are unable or fail to agree upon the third arbitrator within the allotted time, the third arbitrator shall be appointed by Court.
All arbitrators shall serve as neutral, independent and impartial arbitrators.
Optional

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