Computer Expert Evidence
Arbitration
Mediation
Precedent for an Agreement on a Dispute Resolution Process where the Same Person will First attempt to Mediate and if no Agreement Is reached go on to Arbitrate.
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Mediation/Arbitration Agreement
[Square brackets indicate where names, dates etc have to be
entered.]
This agreement is between:
(1)[First Party] of )
[address] ) the
[contraction] )
) Disputing
(2)[Second Party] of )
[address] ) Parties
[contraction] and )
(3) Clifford Charles Dilloway the Mediator and the Arbitrator.
The Matter in dispute is [Please complete]
The agreement between the Disputing Parties is
Process
1. The parties agree to use their best endeavours to
resolve the Matter in Dispute by Mediation and to the
appointment of Clifford Charles Dilloway as Mediator.
2. The Representatives of the Disputing Parties for the
Mediation will be:
[Please complete] for [contraction]
and [Please complete] for [contraction]
3. The Representatives will represent the respective
Parties in the Mediation and it is warranted that they will
have full and unconditional authority to settle the dispute.
On written notice to all other Parties to this Agreement the
Disputing Parties may change their Representative. At any
meeting in the Mediation such additional persons as the
Parties require may be present.
4. The Mediation will take place at [location] at [time]
o'clock on the [date] day of [month] 1998, and will continue
on the following day if necessary.
5. At least 7 days prior to the Mediation both Disputing
Parties will have submitted to the Mediator and will have
exchanged copies of a written summary of their case and
relevant background documentation.
6. Procedure at the Mediation, and for any Arbitration
afterwards (Clause 11 below), will be determined by the
Mediator, in consultation with the parties.
7. Everything said or done in the Mediation process is
without prejudice and may not be used, referred to or relied
upon in any other proceedings whatsoever save as provided in
Clause 11.
Conclusion of the mediation/commencement of arbitration
8. The Mediation will continue during the day(s) agreed
until, subject to Clause 9, agreement is reached.
9. If there are any issues outstanding between the
Disputing Parties at the conclusion of the period specified
in Clause 4 (or such truncation or extension of that period
as the Disputing Parties may agree) the Mediator will
arbitrate on such issues and for that purpose the said
Clifford Charles Dilloway will be Arbitrator.
Settlement
10. If in the Mediation an agreement is reached Heads of
Agreement will, if appropriate and required by the Disputing
Parties, be prepared, and signed by the Parties. No
agreement as to the terms of any settlement reached during
the Mediation shall be legally binding unless and until it
is reduced to writing and signed by the Representatives.
The Disputing Parties shall however be legally bound by any
settlement so reduced to writing and signed and undertake to
give effect to such settlement in accordance with its terms.
Arbitration
11.1 The Arbitrator will forthwith order a Preliminary
Meeting in the Arbitration to hear submissions on the
procedure to be followed in the conduct of the Arbitration.
11.2 The procedure in the Arbitration shall be determined by
the Arbitrator and such procedure shall make provision at an
appropriate stage for an "Arbitrator's Report to the
Parties" which shall have the intention of setting out all
the rebuttable facts and points of law as then understood by
the Arbitrator on a part heard basis. The Disputing Parties
will be deemed to agree the admissibility of the facts in
the Arbitrator's Report to the Parties unless they make
written objection within 14 days of receipt of such report.
The existence of privilege shall be a matter to be
determined by the Arbitrator.
11.3 The arbitral proceedings commence on signature of this
agreement.
11.4 The Arbitrator shall make his award within three months
of the arbitral proceedings commencing and the court shall not
have the power to extend that time.
11.5 The Arbitrator has the power to order on a provisional
basis any relief which he would have power to grant in a final
award.
11.6 The Arbitrator shall dispense with reasons in making his
award.
11.7 The court may not determine any question of law arising
in the course of the arbitral proceedings.
11.8 No appeal may be made to the court on any question of
law arising out of an award made in the proceedings.
11.9 The Arbitrator is authorised to designate the seat of
the arbitration.
Confidentiality
12. By taking part in the Mediation/Arbitration the Parties
undertake to each other and agree that:
(i) the entire Mediation/Arbitration is and will be
kept confidential;
(ii) the Parties, their Representatives and advisers
and the Mediator/Arbitrator shall keep
confidential all statements and all other matters
whether oral or written including any settlement
agreement relating to the Mediation/Arbitration
except insofar as disclosure is necessary to
implement and enforce such settlement agreement.
Independence
13. The Mediator/Arbitrator may not act for either
Disputing Party individually in any capacity with regard to
the subject matter of the Mediation, and the Disputing
Parties acknowledge that in acting under this Agreement, the
Mediator is not representing or giving legal advice to, nor
assessing, upholding or protecting (or attempting to assess,
uphold or protect) any rights of the Disputing Parties. The
Parties are encouraged to take legal advice in respect of
all matters pertaining to the Mediation/Arbitration as they
think appropriate.
Costs
14. Unless the Parties agree otherwise: (1) the fees and
expenses of the Mediator and the Mediation as well as any
other administrative expenses of the Procedure will be borne
by the Disputing Parties in equal shares; (2) Each Disputing
Party will also pay its own costs of individual
representation in the Mediation.
15. The costs of the Arbitration shall be dealt with in
accordance with arbitration law.
16. The Mediator/Arbitrator shall be paid fees of [amount]
per day for all time spent on or allocated to the purposes
of the Mediation/Arbitration. The Disputing Parties shall
be jointly and severally liable for the
Mediator/Arbitrator's fees, expenses and disbursements
together with Value Added Tax thereon.
Exclusion of liability etc
17 The Mediator shall not be liable to the Parties for any
act or omission whatsoever in connection with the services
provided.
Law
18. This Agreement shall be governed by and construed in
accordance with English law, under the jurisdiction of the
English Courts.
Dated the day of 1997
SIGNED...............................
for and on behalf of [First Party]
SIGNED...............................
for and on behalf of [Second Party]
SIGNED...............................
by the Mediator/Arbitrator
Cliff Dilloway
www.endispute.co.uk