Mediation Model Clauses

Agreement to Mediate

The CPR Mediation Procedure (the "Procedure") may be adopted by agreement of the parties, with or without modification, before or after a dispute has arisen. The following provisions are suggested:

A. Pre-dispute Clause

The parties shall attempt to resolve any dispute arising out of or relating to this Agreement promptly by confidential mediation under the [then current] CPR Mediation Procedure [in effect on the date of this Agreement], before resorting to arbitration or litigation.

B.  CPR Model Clause for Concurrent Mediation-Arbitration

“Following the commencement of any arbitration, the parties shall endeavor to settle the dispute by confidential mediation under the CPR Mediation Procedure in effect on the date of this Agreement (the “CPR Mediation Procedure”).  Unless they otherwise agree, the parties shall select a mediator from the CPR Panels of Distinguished Neutrals.  If a mediation has already been initiated prior to the commencement of the arbitration pursuant to a CPR Mediation Model Clause, and if all parties consent, the previously appointed mediator may serve as the mediator under this Concurrent Mediation-Arbitration Clause.  The mediation initiated under this Clause will continue until a written settlement agreement is reached, an award is delivered to the parties, or the procedure is terminated by agreement of the parties.  Notwithstanding the foregoing, any party may withdraw at any time after attending the first substantive mediation conference, as provided in paragraph 3(b) of the CPR Mediation Procedure.  The mediation shall be conducted in accordance with the CPR Protocol for Concurrent Mediation-Arbitration (CMA)l [currently in effect OR in effect on the date of this Agreement] (the “CMA Protocol”) and the CPR Mediation Procedure, to the extent that Procedure is not inconsistent with this Clause or the CMA Protocol.  Any settlement reached in the course of the mediation and before an award is made, shall be referred to the Arbitral Tribunal and, if the parties so agree, may be reflected in a consent award under Rule 21.5 of the CPR Rules for Administered Arbitration.”

OR

Optional Clause for Use with CPR Negotiation-Mediation Clause

 “In the event the parties have also adopted the CPR Negotiation-Mediation Clause, and if the dispute has not been resolved by negotiation within the period specified therein, the parties shall confer to determine whether they consent to conducting a mediation prior to the commencement of the arbitration. Absent the consent of all parties within 7 days after the end of the period specified for negotiation, the mediation shall occur after, and not before, the commencement of the arbitration.”

C. Existing Dispute Submission Agreement

We hereby agree to submit to confidential mediation under the CPR Mediation Procedure the following controversy:

(Describe briefly)

Negotiation-Mediation Clause 

a. Negotiation Between Executives The parties shall attempt to resolve any dispute arising out of or relating to this [Agreement][Contract] promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this contract. To initiate a negotiation, a party shall give the other party written notice of any dispute not resolved in the normal course of business. Within [30] days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt to resolve the dispute. All negotiations pursuant to this clause are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.

b. If the dispute has not been resolved by negotiation as provided herein within [45] days after delivery of the initial notice of negotiation, [or if the parties failed to meet within] 20 [days,] the parties shall endeavor to settle the dispute by mediation under the CPR Mediation Procedure [currently in effect OR in effect on the date of this Agreement], [provided, however, that if one party fails to participate as provided herein, the other party can initiate mediation prior to the expiration of the] 45 [days.] The parties have selected [insert name] as the mediator in any such dispute, and [he][she] has agreed to serve in that capacity and to be available on reasonable notice. In the event that [insert named mediator] becomes unwilling or unable to serve, the parties have selected [insert name] as the alternate mediator. In the event that neither person is willing or able to serve, the parties will agree on a substitute with the assistance of CPR. Unless otherwise agreed, the parties will select a mediator from the CPR Panels of Distinguished Neutrals.

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