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Covenant to Mediate and Arbitrate The parties hereto agree and covenant to submit all disputes, controversies, differences, claims or demands of any kind relating to or arising out of this Agreement to a two-step dispute resolution process administered by Judicial Arbitration & Mediation Services, Inc. ("JAMS"). This two-step process shall begin with mediation before a retired judge or justice from the JAMS panel followed, if necessary, by binding arbitration. Initiating Mediation Either party to the Agreement may demand mediation at any time by serving a written demand on the other party in person or by registered, certified or federal express mail and also serving a copy of the demand on the Dispute Resolution Administrator at the San Francisco office of JAMS. The written demand shall set forth the names, addresses, telephone numbers and fax numbers of all parties to the Agreement and a brief synopsis of the claim, controversy, difference or disputed matters and a proposed solution to the problem. Selection of Mediator As soon as practicable after the demand is served upon JAMS, the Dispute Resolution Administrator will contact all interested parties to select a mutually agreeable mediator. If the parties have no particular mediator in mind or cannot agree on a mediator, the Administrator will submit a list of mediators and their resumes, numbering one more than there are parties. Each party may then strike one name and the Administrator will designate the mediator from the list of remaining names. Hearings-Scheduling/Parties Present After the mediator has been selected, the parties shall promptly agree upon a date and time for the initial conference with the mediator, but no later than 30 days after the date the mediator was selected. The parties understand and agree that, besides counsel, a representative from each side with full settlement authority will be present at all mediation conferences unless excused by the mediator. In addition, each party may bring additional persons as needed to respond to questions, contribute information and participate in the negotiations. The number of additional parties may be agreed upon in advance with the assistance and advice of the mediator. Discovery In the event any party has substantial need for information in the possession of another party to prepare for the mediation conference(s), the parties shall attempt in good faith to agree upon procedures for the expeditious exchange of information, with the help of the mediator, if required. Position Papers No later than 7 days before the first scheduled mediation session, each party shall deliver a concise written summary of its position, together with any appropriate documents, views and a proposed solution to the matters in the controversy to the mediator and also serve a copy on all other parties. Participation by Mediator Once familiar with the case, the mediator will, if requested by the parties, give an opinion on the probable outcome of the case and the range of value, both in terms of settlement and trial if the matter were to be litigated. The mediator will, without an instruction from the parties to the contrary, give recommendations on terms of possible settlement conditions to be imposed upon the parties (if appropriate). The mediator's opinion shall be based on the material and information then available to all parties, excluding any information given to me mediator in confidence during a separate caucus. The opinions and recommendations of the mediator are not binding on the parties. Confidentiality of Proceedings The mediation process is to be considered settlement negotiation for the purpose of all state and federal rules protecting disclosures made during such conferences from the later discovery or use in evidence. The parties hereto agree that the provisions of California Ev.C. §1152.5 shall apply to any mediation conducted hereunder. Subdivisions (a) and (b) of Ev.C. §1152.5 provide as follows: (a) Subject to the conditions and exceptions provided in this section [paragraph?], when persons agree to conduct and participate in a mediation for the purpose of compromising, settling or resolving a dispute: (1) Evidence of anything said or of any admission made in the course of the mediation is not admissible in evidence, and disclosure of any such evidence shall not be compelled in any civil action in which, pursuant to law, testimony can be compelled to be given. (2) Unless the document otherwise provides, no document prepared for the purpose of, or in the course of, or pursuant to, the mediation, or copy thereof, is admissible in evidence, and disclosure of any such document shall not be compelled, in any civil action in which, pursuant to law, testimony can be compelled to be given. (b) Subdivision (a) does not limit the admissibility of evidence if all persons who conducted or otherwise participated in the mediation consent to its disclosure. The entire procedure is confidential, and no stenographic or other record shall be made except to memorialize a settlement record. All conduct, statements, promises, offers, views and opinions, oral or written, made during the mediation by any party or a party's agent, employee, or attorney are confidential and, where appropriate, are to be considered work product and privileged. Such conduct, statements, promises, offers, views and opinions shall not be subject to discovery or admissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties. Provided, however, that evidence otherwise subject to discovery or admissible is not excluded from discovery or admission in evidence simply as a result of it having been used in connection with this settlement process. Fees and Costs The fees and costs of the mediation shall conform to the then current fee schedule at JAMS and, in the absence of an agreement to the contrary, will be borne equally by all parties. Termination of Mediation Process The mediation process shall continue until the matter is resolved, or the mediator makes a good faith finding that all settlement possibilities have been exhausted and there is no possibility of resolution through mediation. To the extent possible, mediation shall be conducted from 9:00 a.m. to 5:00 p.m., with a one hour break on consecutive days. Enforcement Failure of any party to participate in this mediation process or to designate or strike a name for mediator will not operate to delay or prevent this mediation process. The parties hereby agree that the mediation provisions of this Agreement may be enforced in the same manner as an arbitration agreement. The mediation provisions may be enforced by petition to any court of general jurisdiction for the appointment of a mediator in the same manner as a petition for the appointment of an arbitrator. Further, the parties agree that the court may award attorney fees and costs to the prevailing party in any proceeding to enforce these provisions. Arbitration Should any disputes remain or exist between the parties after completion of the mediation process set forth above, then the parties shall promptly submit such dispute to binding arbitration administered by JAMS. Arbitration shall be initiated in the following manner: (a) The claimant shall file a copy of the Demand for Arbitration and Notice of Claim at the San Francisco office of JAMS, together with the appropriate filing fee as provided in JAMS' existing fee schedule. A copy of the Demand shall be sent to the other party by registered, certified or federal express mail. (b) If the responding party desires to file a response and/or counterclaim, they must do so within thirty (30) days of service of the demand. Failure to file a counterclaim or response will not operate to delay the arbitration proceedings. (c) After the filing of the claim, response and counterclaim, no further claims or counterclaims may be made except on motion to the arbitrator. Appointment and Powers of Arbitrator The case shall be submitted to the party serving as the mediator, or if such person is not available or the parties agree otherwise, to a single arbitrator chosen by the parties from JAMS' panel of retired judges. Should the parties be unable to agree on a choice of arbitrator within thirty (30) days from service of the demand for arbitration, then either party may request JAMS Arbitration Administrator to furnish a list of three names and each side may strike one name thereby nominating the remaining person as replacement arbitrator. If more than one name remains, JAMS Arbitration Administrator will choose an arbitrator from the list of remaining names. The arbitrator shall have full power to make such regulations and to give all such orders and directions, as he or she shall deem just and expedient, not only in respect to the matters and disputes referred to the arbitrator but also with respect to the mode and times of executing and performing any of the acts, deeds, matters, and things which may be directed to be done or awarded. The arbitrator shall have the authority and power to request the production of any books or records in the possession or control of either of the parties, and to order that either party shall in the meantime have access to and be permitted to inspect and take copies of all or any of the same relating to the matters in dispute. The arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties, including, but not limited to, injunctive relief and/or specific performance. Should either party refuse or neglect to appoint said arbitrator or to furnish the arbitrator with any papers or information demanded, or fail to attend hearings, the arbitrator is empowered by both parties to proceed ex parte. Costs and Fees Each party shall be responsible for its own costs and expense of the arbitration and the costs and fees of JAMS shall be borne equally by the parties. Proceedings/Format Prehearing. Once the arbitrator is chosen, the Arbitration Administrator at JAMS may be authorized and directed upon application of any party to schedule a prehearing conference with the arbitrator for the purpose of narrowing the issues, establishing a discovery schedule, arranging an acceptable procedure for any law and motion proceedings and in all respects arranging for the most expeditious hearing possible of the matters in dispute. Discovery. Discovery shall be at the discretion of the arbitrator and allowed only upon a showing of good cause utilizing the following guidelines: (a) The arbitrator shall have discretion to order prehearing exchange of information, including but not limited to, the production of requested documents and exchanges of summaries of testimony of proposed witnesses. (b) The depositions of the claimant(s) and respondent(s) shall be allowed as a matter of right. One set of interrogatories shall be allowed. There shall be an early and prompt designation of expert witnesses who may be called upon to testify at the arbitration hearing. their deposition sand all other discovery shall be allowed only upon a showing of good cause. Evidence. Judicial rules relating to the order of proof, the conduct of the hearing and the presentation and admissibility of evidence shall not be applicable in this proceeding. Any relevant evidence, including hearsay, shall be admitted by the arbitrator if it is the sort of evidence upon which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the admissibility of such evidence in a court of law. Time Limits. To the extent possible, the arbitration shall be scheduled on consecutive days from 9:00 a.m. to 5:00 p.m., with a one hour lunch break. The award shall be made by the arbitrator on or before 60 days after final submission of all matters, or within such extended time, not exceeding altogether 60 additional days, as the arbitrator shall from time to time direct. Reasoned Opinion. In rendering the award the arbitrator shall set forth the reasons for his or her decision. Finality of Award The award of the arbitrator shall be final and binding upon the parties without appeal or review. Application may be had by any party to any court of general jurisdiction for entry and enforcement of judgment based on said award.
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