Guided Choice System Clauses :
[The Guided Choice System can function if the parties only agree to Clause #1.]
1. Any claim, dispute or other matter in question arising out of or related to this Agreement concerning the Project shall be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by any party. However, any party having the right to statutory remedies may perfect any such right, including the timely filing of any notice or lien or obtaining of injunctive relief in a court of law to preserve the status quo. Any mediation pursuant to this Agreement may be joined with any agreement by which a person or entity has an obligation to mediate disputes relating to the Project with any party to this Agreement. The mediation shall be conducted in accordance with the Construction (or Commercial) Mediation Rules of the American Arbitration Association, unless otherwise agreed to by the parties. The parties are free to agree to use other mediation rules or another agency other than AAA or to have no administration.
2. If the parties have otherwise agreed to use a design review board the investigations of such a board may proceed not withstanding an obligation to mediate. However, so long as the agreement to mediate is in force, the decision on how to use the opinions of the board shall be an issue to consider as part of the mediation process.
3. The mediator shall have at least ten years experience as a neutral commercial arbitrator in unless the parties agree otherwise. If a construction industry dispute is involved that experience shall be with construction industry disputes. The parties shall be satisfied that the neutral understands the principles of the Guided Choice System.
4. The cost of the mediation shall be shared among those persons or entities that participate. In multi-tier contracts, each tier shall be considered one entity for purpose of this allocation.
5. If the mediator declares in writing an impasse in the mediation process, then as a continuing part of the mediation process, the mediator shall assist the persons or entities who participated in the mediation, who shall act in good faith, to attempt to design a mutually-acceptable arbitration process agreement (“Dispute Resolution Process Agreement or “DRPA”)”). If this collaborative process does not result in a DRPA Agreement within thirty (30) days from the declaration of impasse, then the parties may pursue other available legal remedies. DRPA does not obligate any party to arbitrate a dispute unless an agreement to arbitrate otherwise exists. The discussions, but not the final agreed language, about the DRPA shall be considered as settlement discussions within the applicable mediation privilege and shall not be admissible in a subsequent legal proceeding.
6. The mediator shall not offer to act as the arbitrator, but may consent to do so if so requested by all the parties.
7. The issues to be resolved in the DRPA include, but are not limited to the following and shall consider the use of the College of Commercial Arbitrators’ Protocols for Expeditious, Cost Effective Commercial Arbitration and the CCA Guide to Best Practices in Commercial Arbitration (2d edition): (1) selection of appropriate arbitrators or arbitrator and a panel chair. Criteria will include experience, cost, availability within the timeframe of the parties, and ability to understand the issues in dispute; (2) length of the hearings; (3) site of the hearings; (4) form of the final and interim awards; (5) conditions for pre-hearing relief; (6) the governing substantive and arbitration law, including agency rules; (7) whether and how issues can be narrowed through a document similar to a “Terms of Reference;” (8) determination of a protocol for discovery, including discovery of electronically stored data and procedures for discovery from third parties; (9) parties to the arbitration; (10) whether and how the hearings can be expedited without violating perceptions of fairness to the parties. This includes the use of experts and the extent to which live testimony is required; and (11) appeals, if any.
8. If the parties agree, the mediator will be available to continue to assist the parties in reaching a settlement during the arbitration hearings. However, the mediator will continue his/her confidentiality obligations and is prohibited from communicating with the arbitrator(s), or doing any independent investigations. The mediator’s sole source of information will be the record in the arbitration or what the parties choose to disclose confidentially to the mediator.
9. In performing his or her role, the mediator shall maintain the confidentiality of information as required by the rules pursuant to which the mediation is conducted and any more stringent requirements by law.