A. In the event that any dispute or any issue of interpretation shall arise between the Parties to this Agreement regarding the interpretation of the terms and conditions of this Agreement, or regarding the performance of the terms and conditions of this Agreement by any of the Parties, said parties hereby agree and covenant to proceed to negotiate in good faith to try and resolve said dispute. In the event that such efforts do not resolve the dispute, then the Parties agree to attempt to resolve the dispute in mediation and if that method of resolution fails, then the Parties agree to go to binding arbitration as set forth below.
The Parties agree to the following dispute resolution procedure shall be utilized as the sole and exclusive method for resolving any dispute between the Parties to the Agreement, regarding any matter touching on or concerning the Agreement except that it shall not apply to claims involving: [e.g., trade secrets, nonsolicitation].
B. This Dispute Resolution Procedure shall be commenced by the sending of a notice as follows:
- (i) a notice must be in writing;
- (ii) a notice must be sent to the address contained in the Agreement for the sending of notices;
- (iii) a notice must be made in good faith, and state with reasonable certainty and in reasonable detail all of the pertinent facts regarding the dispute.
C. Once the Dispute Resolution Procedure has been invoked, then both Parties shall submit to each other a list of their three preferred mediators from the Lakeside Mediation Center in Austin Texas (www.lakesidemediation.com), within fifteen (15) working days. Upon receipt of said list, the Parties shall first attempt to agree upon a Mediator/Arbitrator. If the Parties are unable to agree, then the Party invoking the Dispute Resolution Procedure shall file suit in the _______ Court of _______County, ________ to enforce this Agreement and immediately bring to the Court’s attention the provisions of this Agreement regarding dispute resolution. A hearing shall be held as expeditiously as the Court shall allow, and the Court shall select the Mediator/Arbitrator from the lists previously provided by the Parties. Upon selection of the Mediator/Arbitrator, no further action shall be taken in the District Court, until the Dispute Resolution Procedure is completed, other than to enforce this section of this Agreement.
D. Thereafter, and as soon as is possible, the Parties shall meet at such a place and time as designated by the Mediator for a mediated settlement conference pursuant to Tex. Civ. Prac. & Rem. Code, Chapter 154. The Parties shall continue the mediation settlement conference until the dispute is resolved by agreement, or the Mediator declares an impasse;
E. In the event an impasse is declared, then the Parties follow the procedure outlined in (A) through (C) above for the selection of an Arbitrator. Thereafter, and as soon as is possible, the Parties shall proceed to binding arbitration pursuant to the provisions of theTexas General Arbitration Act, before the selected or agreed upon Arbitrator, with the following restrictions:
- (i) discovery shall be limited, as is determined by the Arbitrator and this section;
- (ii) all documents relevant to the dispute, or that either Party intends to utilize at the arbitration hearing shall be produced and exchanged not less than 20 days prior to the arbitration proceeding, as well as the identity of all persons that a Party intends to call as a witness at the arbitration hearing;
- (iii) each Party shall be entitled to take the deposition of a representative of the other side, who is most knowledgeable concerning the dispute, and of each witness and/or expert that the other side intends to use at the arbitration hearing;
- (iv) the Arbitrator shall set the arbitration date, and shall make such rulings on discovery matters as are necessary;
- (v) ten (10) days prior to the arbitration hearing, each Party shall submit its entire case, in writing, to the Arbitrator, and to each other;
- (vi) five (5) days prior to the arbitration hearing, the Arbitrator shall inform the Parties of what the Arbitrator perceives the relevant issues for resolution to be, and may request such other and further testimony and other evidence as may be desired;
- (vii) the arbitration hearing itself shall be primarily for rebuttal and oral argument, as well as for presentation of the additional matters requested by the Arbitrator;
- (viii) the arbitration hearing shall continue until such time as the Arbitrator is ready to make an award. At such time, the hearing shall adjourn, and the Arbitrator shall prepare the award, in writing, and deliver a copy of the same to the Parties;
- (ix) the prevailing Party shall ensure that said award is incorporated into the Court’s judgment. If the Parties so choose, they may opt at this stage to submit the matter to mediation one more time in order to resolve the matter by agreed settlement. If an agreed settlement is reached, then the Court shall be informed that the matter has been settled, and such action, consistent with the settlement, shall be taken in the court proceeding; and
- (xi) In the event no agreed settlement is reached and it becomes necessary to proceed with entry of the final award from the arbitration hearing, then the costs of the arbitration, together with the attorneys’ fees, expenses of the arbitration, and any recoverable court costs incurred may be awarded as part of the award to the Party prevailing in the arbitration award.
PLEASE TAKE THIS AGREEMENT HOME AND CAREFULLY CONSIDER ALL OF ITS PROVISIONS BEFORE SIGNING IT. YOU SHOULD CONSULT AN ATTORNEY OF YOUR CHOICE ABOUT THIS AGREEMENT BEFORE YOU SIGN THE AGREEMENT. SIGNING THIS AGREEMENT RELEASES IMPORTANT LEGAL RIGHTS.