Mediation clause samples

In connection with the Mediation, we executed non-disclosure agreements (“NDAs”) with certain of our secured creditors to facilitate discussions in the Mediation. Pursuant to the NDAs, the Company agreed to disclose publicly after a specified period, if certain conditions were met, the fact that confidential discussions occurred, and certain information regarding such discussions.

On July 13, 2018, we filed Motions with the Bankruptcy Court requesting an order extending the Mediation and Exclusive Filing Period to July 31, 2018, without prejudice to seek further extensions of the Exclusive Filing Period.Our Exclusive Filing Period will extend at least until a hearing is held with respect to our Motions.We were unable to obtain an agreement with respect to a consensual extension of the Exclusive Filing Period and Mediation.As reflected in our Motions, we have proposed a timeline for concluding the negotiations and have stated that we intend to file a plan by the proposed end of the Exclusive Filing Period (as extended).

For a mediation, the proceeding will start within [15] days after selection of the mediator and conclude within [30] days after the start of the mediation. Expenses of the mediation will be allocated among the parties as mutually agreed by the parties as part of the mediation. If the parties fail to agree at the completion of the mediation, the requesting party may refer the repurchase request to arbitration.

For a mediation, the parties will agree to use commercially reasonable efforts to begin the mediation within [15] business days of the selection of the mediator and to conclude the mediation with [30] days of the start of the mediation. The costs of the mediation will be allocated among the parties as mutually agreed by the parties as part of the mediation. If the parties fail to agree at the completion of the mediation, the requesting party may refer the repurchase request to arbitration or may commence legal proceedings to resolve the dispute.

The process for determining whether there has been a breach of a representation and warranty that materially and adversely affects the value of, or the interest of the certificateholders in, a mortgage loan, and the obligation to cure such breach, or to repurchase, substitute for or make an indemnification payment with respect to such mortgage loan, may be time-consuming and could result in delays in payments on the certificates. As described under “The Agreements – Enforcement of Representations and Warranties and Dispute Resolution” herein, any certificateholder or the trustee may pursue an action to enforce an alleged breach, which may include an arbitration proceeding or mediation. Additionally, the asset representations reviewer will review each mortgage loan that (i) becomes 120 days delinquent or (ii) is liquidated and a realized loss is incurred, to determine whether there have been breaches of representations and warranties under the related purchase agreement. Furthermore, if so directed by the requisite vote of certificateholders, the asset representations reviewer will review each mortgage loan that has become 60 or more days delinquent since the closing date in order to determine whether there have been breaches of any representations and warranties if the aggregate principal balance of loans that are 60 or more days delinquent or have been subject to a servicing modification within the last 12 months equals or exceeds 5% of the stated principal balance of the mortgage loans as of the most recent distribution date, as described more fully herein under “Duties of the Asset Representations Reviewer.” Based on such reviews, the trustee will, or any certificateholder may, determine whether a claim should be made for a mortgage loan to be repurchased. Any certificateholder may compel the trustee to refer a claim to arbitration or mediation even if, based upon the review of the asset representations reviewer, the trustee has concluded that there was no evidence of a breach of a representation and warranty. These procedures may take substantial time, which could result in delays, increased costs and losses to certificateholders. The rights of a certificateholder with respect to any alleged breach of a representation and warranty are described under “The Agreements—Enforcement of Representations and Warranties and Dispute Resolution” herein.

satisfaction of the party pursuing an action and the applicable originator or the seller, as the case may be, by the end of the 180 day period beginning when notice of the repurchase request is received, then the trustee or a certificateholder may compel the applicable originator or the seller to resolve the dispute through arbitration or mediation. Arbitration will be conducted in accordance with the rules of the American Arbitration Association. The arbitrator will determine the allocation of any expenses relating to the arbitration proceeding. If the dispute is resolved through mediation, the parties will mutually agree on the allocation of the expenses incurred.

6.We also note your disclosure on page 132 that, if the trustee does not elect to refer a matter to dispute resolution, any certificateholder may do so by notice to the trustee. This provision appears to place a restriction on the certificateholders’ rights to utilize the shelf eligibility provision by allowing them to refer a matter to dispute resolution only once the trustee has elected not to do so. We note for example, that this provision would seem to preclude certificateholders from utilizing the provision where the certificateholders may determine that the trustee is not acting in the best interest of the investors, which would be inconsistent with the shelf eligibility requirement to permit a requesting party to refer a matter to resolution if a repurchase request has not been resolved within 180 days after receipt of notice of the request. See, for example, Section V.B.3(a)(3)(c) of the Regulation AB 2 Adopting Release that “investors should be able to utilize the dispute resolution provision not only in connection with those requests in which the sponsor has failed to respond in a timely manner but also for those requests in which investors believe that the resolution offered by the sponsor does not make them whole.” This also appears to be inconsistent with your disclosure on page111 under the section titled “The Agreements – Assignment of the Mortgage Loans” that “...either the trustee or any certificateholder may direct the dispute to arbitration or mediation.” Please revise.

9.We also note your disclosure in the last paragraph on page 132 that, if no certificateholder commences arbitration or mediation within 210 days after delivery of the repurchase request, then the rights of the certificateholders will terminate and no certificateholder will have any further right to refer the matter to arbitration or mediation. It is not clear that your time limitation provides certificateholders with the time necessary to evaluate the repurchase request dispute and communicate with other certificateholders about the dispute if, for example, the requesting noteholder is notified directly of the failure to reach resolution on day 180, taking into consideration the timing of the Form 10-D filing if certificateholders wish to utilize the shelf investor communication mechanism. Please revise or advise.

Each party shall bear its own costs in the mediation. The parties shall share equally the fees and expenses of the mediator.

And, on August22, 2016, a Notice was sent to the Holders of Certificates Issued by the Trust and Other Potential Parties-in-Interest (the “Notice”) stating that on August9, 2016, the District Court for the Second Judicial District of the state of Minnesota, County of Ramsey (the “Minnesota Court”) rendered its decision with respect to the petition filed by the Trustee (the “Petition”) requesting that the Minnesota Court authorize the Trustee to use Trust assets to (a)pay all fees and expenses incurred by the Trustee in connection with an adversary proceeding filed by Lehman Brothers Special Financing Inc. (“LSBF”) against the Trust in the United States Bankruptcy Court for the Southern District of New York, (the “Litigation”), and (b)pay all future fees and expenses that the costs and expenses incurred by the Trustee in connection with the Litigation and the related mediation. Among other things, the Minnesota Court ruled that the costs and expenses of participating in the mediation and defending the Litigation constituted Extraordinary Expenses under the terms of the Trust Agreement. The Minnesota Court further ruled that there are three methods for paying Extraordinary Expenses: (a)from the Trust Property upon the consent of 100% of the Certificateholders, (b)a lesser percentage of the Certificateholders may own funds, or (c)indemnification of the Trustee by the Depositor. Unless all three of these methods are “not available,” the Minnesota Court determined that there is no change in circumstances requiring a modification of the Trust.

17. Under the terms of the SPV ADR Order, the Trustee, among other things, is required to determine whether it has authority to mediate the dispute on behalf of the Trust, respond to the allegations set forth in the SPV ADR Derivatives Notice, and provide certain notices to Certificateholders about the initiation of the mediation proceedings and encourage the Certificateholders to participate in the mediation. While the mediation stays the Litigation, there are significant ramifications for not participating in the mediation procedures.

19. The Trustee provided a notice to Certificateholders of the Complaint and the mediation. As of the date hereof, while the Trustee has heard from a small group of Certificateholders, none of the Certificateholders to date have committed to attending any mediation. While the Trustee does not have a definitive list of the beneficial owners of the Certificates, given the small minimum denominations of the Certificates, the Certificates may be widely held and it may be difficult to identify a holder or holders with sufficient holdings to warrant an individual holder spending the time and expense of participating in the mediation and defending the Litigation on behalf of the Trust.

9.2.1 Mediation. If the Parties’ respective CEOs are unable to resolve such dispute or difference within such fifteen (15) day period, the Parties agree to submit the dispute to a mutually agreeable third party who will assist in mediating the dispute to a satisfactory resolution and to conclude such private mediation within thirty (30) days of the filing by a Party of a request for such mediation. The mediation process may be invoked by any Party on written request and shall not be construed to constitute an admission against interest of the Party requesting mediation. Any mediation shall be confidential and non-binding on the Parties and no statements made or information exchanged during mediation will be admissible in any future legal or arbitration proceedings without the written consent of the Parties. If the dispute involves NutriQuest’s obligations under the Agreement, mediation shall take place in Mason City, Iowa; if the dispute involves ZIVO’s obligations under the Agreement mediation shall take place in Keego Harbor, Michigan. The Parties may mutually agree to conduct mediation at another location. Each Party will pay its own costs, plus an equal share of the costs of the mediator and the mediation facilities.

(c)Mediation. As a condition precedent to the commencement of any legal action, the Parties shall in good faith first attempt to resolve any dispute or disagreement using mediation. The mediation shall be commenced and held in accordance with the American Arbitration Association (“AAA”) Commercial Dispute Resolution Procedures, in effect at the time of the request for mediation. The AAA shall administer the mediation, including the selection and appointment of the mediator, which shall be in accordance with the AAA Rules, provided however, that the mediator appointed must possess at least five (5) years of full or part-time experience as a commercial mediator. Unless otherwise agreed upon by the Parties, the meditation conference shall be held in Collin County, Texas.

8.1 Mediation. Any dispute, controversy, or claim arising out of or relating to this Agreement (a “Dispute”) that cannot be settled through negotiation shall be mediated by the parties before a single mediator in the State of Kentucky. Any Party to this Agreement may invoke the right to mediation set forth in this Section8.1 by sending written notice to the other Party or parties of such invocation and setting forth in adequate detail the nature of the matter to be mediated. The parties to the mediation jointly shall appoint the mediator within fifteen (15)calendar days of receipt of the written notice. The mediation proceedings shall commence and be diligently pursued by the parties to this Agreement within 15 calendar days of the appointment of the mediator. Each party to the mediation shall bear its own costs and expenses incurred with respect to the mediation. The cost of the mediator and the mediation procedure shall be borne equally by the parties to the mediation.

Either Party may, at any time after the Escalation to Mediation Date, submit the Dispute for mediation. The Parties shall cooperate with one another in selecting a neutral mediator and in scheduling the mediation proceedings. Each Party covenants that they will use commercially reasonable efforts in participating in the mediation. Each Party shall prepare for the mediator a written request for mediation, setting forth the subject of the Dispute, the position and supporting documentation of such Party, and the relief requested. Each Party agrees that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties.

(ii) The parties agree to attempt to resolve any dispute, claim or controversy arising out of or relating to this Agreement by mediation, which shall be conducted under the then current mediation procedures of The CPR Institute for Conflict Prevention & Resolution or any other procedure upon which the parties may agree. The parties further agree that their respective good faith participation in mediation is a condition precedent to pursuing any other available legal or equitable remedy, including litigation, arbitration or other dispute resolution procedures. Either party may commence the mediation process by providing to the other party written notice, setting forth the subject of the dispute, claim or controversy and the relief requested. Within ten (10) days after the receipt of the foregoing notice, the other party shall deliver a written response to the initiating party's notice. The initial mediation session shall be held within thirty (30) days after the initial notice. The parties agree to share equally the costs and expenses of the mediation (which shall not include the expenses incurred by each party for its own legal representation in connection with the mediation). The parties further acknowledge and agree that mediation proceedings are settlement negotiations, and that, to the extent allowed by applicable law, all offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties or their agents shall be confidential and inadmissible in any arbitration or other legal proceeding involving the parties; provided, however, that evidence which is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. The provisions of this section may be enforced by any court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including reasonable attorneys’ fees, to be paid by the party against whom enforcement is ordered.

(i)In the event the Chief Executive Officers of the Parties are not able to resolve such dispute as set forth above, the Parties agree to try to solve such dispute amicably by mediation. The Parties shall conduct a mediation procedure according to the Mediation Rules of the World Intellectual Property Organization (WIPO) in effect on the date of the commencement of the mediation proceedings.The location of the mediation proceedings will be New York City, New York, USA. The number of mediators will be one (1). The language of the mediation proceedings will be English.

If the requesting party selects mediation, the mediation will be administered by a nationally recognized arbitration and mediation association selected by the requesting party.The fees and expenses of the mediation will be allocated as mutually agreed by the parties as part of the mediation.The mediator will be appointed from a list of neutrals maintained by the American Arbitration Association (the “AAA”).

Section10.2 Mediation. If, within forty-five (45)calendar days (or such longer period as may be agreed in writing between the Parties) after receipt by a Party of a Dispute Notice, the Parties have not succeeded in negotiating a resolution of the Agreement Dispute, the Parties agree to submit the Agreement Dispute at the earliest possible date to mediation conducted in accordance with the Commercial Mediation Rules of the American Arbitration Association (“AAA”), and to bear equally the costs of the mediation; provided, however, that each Party shall bear its own costs in connection with such mediation. The parties agree to participate in good faith in the mediation and negotiations related thereto for a period of thirty (30)days or such longer period as they may mutually agree following the initial mediation session (the “Mediation Period”).

For a mediation, the proceeding will start within [15] days after the selection of the mediator and conclude within [30] days after the start of the mediation. The expenses of the mediation will be allocated among the parties as mutually agreed by the parties as part of the mediation. If the parties fail to agree at the completion of the mediation, the requesting party may refer the reallocation request to arbitration or court adjudication.

(v)A Party (or Parties) may advise the Tribunal that they have agreed to mediation. The arbitration procedure shall continue during the conduct of the mediation but the Tribunal may take the mediation timetable into account when setting the timetable for steps in the arbitration.

For a mediation, the proceeding will start within [15] days after selection of the mediator and conclude within [30] days after the start of the mediation. Expenses of the mediation will be allocated among the parties as mutually agreed by the parties as part of the mediation. If the parties fail to agree at the completion of the mediation, the requesting party may refer the reallocation request to arbitration.

a) Mediation. If the matter has not been resolved within thirty (30) days of the disputing party’s first notice, or if the parties fail to meet within fifteen (15) days, either party may initiate mediation of the controversy or claim before a mediator appointed by the mediation service JAMS. In any event, the parties agree first to try in good faith to settle any dispute by negotiation and mediation before resorting to arbitration or any other dispute resolution procedure.

The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time at least ten (10)days following the initial mediation session or sixty (60)days after the date of filing the written request for mediation, whichever occurs first. The mediation may continue after the commencement of arbitration if the parties so desire. Unless otherwise agreed by the parties, the mediator shall be disqualified from serving as arbitrator in the case. The pendency of a mediation shall not preclude a party from seeking provisional remedies in aid of the arbitration from a court of appropriate jurisdiction, and the parties agree not to defend against any application for provisional relief on the ground that a mediation is pending.

12.Mediation; Waiver of Jury Trial. The Parties hereby waive any and all rights to Jury Trial. Any controversy or claim arising out of or relating to this Agreement, by, between or among the parties, or the breach thereof, shall be settled by mandatory binding mediation. The mediator’s decision shall be final and legally binding and judgment may be entered thereon. Each party initially shall be responsible for its share of the mediation fees and costs in accordance with the applicable Rules of Mediation. Notwithstanding the foregoing, the prevailing party shall be awarded its reasonable attorneys’ fees and costs. Furthermore, in the event a party fails to proceed with mediation, unsuccessfully challenges the mediator’s award in court, or fails to comply with the mediator’s award, the other party shall be awarded its reasonable attorneys’ fees and costs for having to compel mediation or defend or enforce the award.

We cannot assure you that the measures we have taken to date, and actions we may take in the future, will be sufficient to remediate the control deficiencies that led to our material weaknesses in our internal control over financial reporting or that they will prevent potential future material weaknesses. In addition, neither our management nor an independent registered public accounting firm has performed an evaluation of our internal control over financial reporting in accordance with the provisions of the Sarbanes-Oxley Act because no such evaluation has been required to date. As an emerging growth company and pursuant to Section 404 of the Sarbanes-Oxley Act of 2002, beginning with our Annual Report on Form 20-F for the fiscal year ended June 30, 2019, our management will be required to report on the effectiveness of our internal control over financial reporting. The rules governing the standards that must be met for management to assess our internal control over financial reporting are complex and require significant documentation, testing and possible remediation. We have not yet made a formal assessment of the effectiveness of our internal control over financial reporting for that purpose. Also, once we no longer qualify as an EGC the independent registered public accounting firm that audits our financial statements will also be required to audit our internal control over financial reporting. Any delays or difficulty in satisfying these requirements could adversely affect our future results of operations and the price of our shares. Moreover, it may cost us more than we expect to comply with these control- and procedure-related requirements. Failure to comply with Section 404 or to implement required new or improved controls, or difficulties encountered in their implementation, could harm our operating results or cause us to fail to meet our reporting obligations could potentially result in a loss in investor confidence in our reported financial information and subject us to sanctions or investigations by regulatory authorities.

Prior to filing a demand for arbitration under this clause, a Party must request mediation through JAMS. The Parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The Parties agree that they will participate in the mediation in good faith and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the Parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either Party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation Date”). The mediation may continue after the commencement of arbitration if the Parties so desire. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest Initiation Date. The parties will take such action, if any, required to effectuate such tolling.

Section6.Dispute Resolution. LICENSOR and LICENSEE shall attempt to settle between them amicably any controversy arising out of or related to this Amendment Agreement or the breach thereof. A senior executive from each party shall consult and negotiate to reach a solution. The Parties agree that the period of amicable resolution shall toll any otherwise applicable statute of limitations. However, nothing in this clause shall preclude any party from commencing mediation if said negotiations do not result in a signed written settlement agreement within thirty (30) days after written notice that these amicable resolution negotiations have commenced. In the event the applicable statute of limitations shall expire prior to the expiration of the thirty (30) day period set forth in this section, either party may commence an action as set forth in this Section. If said controversy cannot be settled according to this Section, the Parties agree to good faith efforts to settle the controversy by mediation. The Party seeking mediation shall propose five mediators, each of whom shall be a lawyer licensed to practice by the State of California, having practiced actively in the field of commercial law for at least fifteen (15) years, to the other Party who shall select the mediator from the list. The Parties shall split the cost of the mediator equally. The Parties agree that the period of mediation shall toll any otherwise applicable statute of limitations. However, nothing in this clause shall preclude any Party from commencing further action if said mediation does not result in a signed written settlement agreement within sixty (60) days after written notice that amicable resolution negotiations have commenced. In the event the applicable statute of limitations shall expire prior to the expiration of the sixty (60) day period set forth in this section, either party may commence an action as set forth in Section 6 of this Agreement.

b. Mediation. If the Parties have been unable to resolve a Dispute through good faith negotiation as provided in the prior Subsection, a Party may request that the Parties attempt to resolve the Dispute through mediation by notifying the other Party with a copy to JAMS. The Parties will attempt to select a mutually acceptable JAMS mediator within ten (10)days of the notice requesting mediation. The mediation will be held in Lake County or Cook County, Illinois within thirty (30)days of the notice requesting mediation before a JAMS mediator and in compliance with JAMS mediation guidelines. Each party will bear its own costs in preparing for and participating in the mediation and one-half of the fees and expenses charged by JAMS for conducting the mediation.

A case was filed in November 2014 in the US District Court of Tennessee as a collective action under the US Fair Labor Standards Act (“FLSA”) and Tennessee law, alleging that plaintiff was forced to work “off the clock” without being paid for such time. In December 2014, a similar FLSA collection action case was filed against IBEX Global Solutions in the US District Court for the District of Columbia. In February 2015, the two cases were consolidated in Tennessee and the plaintiff agreed to submit all claims to binding arbitration before the American Arbitration Association. Presently, there are approximately 3,500 individuals who have opted into the FLSA class action claims, and there are pending wage and hour class action claims under various state laws involving approximately 21,000 potential class action claimants. State class certification brief was filed April 14, 2018. In April 2019, the parties engaged in a mediation. On June 14, 2019, the parties entered into a settlement agreement, which was approved by the arbitrator on June 19, 2019. Pursuant to the Settlement Agreement, all claimants under both the FLSA and the Rule 23 claims will be required to fill out and send a claim form to the third-party administrator within the claim period ending on October 15, 2019 in order to receive funds under the settlement. Subsequent to June 30, 2019, we funded $3,351,244 toward the settlement fund provided under the settlement agreement for 100% of the possible claims under the FLSA, as well as plaintiffs’ attorney fees, administration costs and service awards. Any funds not claimed pursuant to the FLSA portion of the settlement will revert to us. In regard to Rule 23 claims, the claim period closed on October 15, 2019 and, as of that date, claim forms properly and timely returned for the Rule 23 class members accounted for $1.2 million of $2.2 million allocated funds for the Rule 23 class. The parties appeared before the arbitrator on November 7, 2019, and the arbitrator granted final approval of the Rule 23 claims. We funded the Rule 23 Class on November 21, 2019 in the amount of $1.2 million, and the matter is effectively closed as of funding.

IBEX LimitedNotes to the Consolidated Financial StatementsFor the years ended June 30, 2019 and 2018 was filed against IBEX Global Solutions in the US District Court for the District of Columbia. In February 2015, the two cases were consolidated in Tennessee (the “Consolidated Action”) and plaintiffs agreed to submit all claims to binding arbitration before the American Arbitration Association. Presently, there are approximately 3,500 individuals who have opted into the FLSA class action claims, and there are pending wage and hour class action claims under various state laws (“Rule 23 Claims”) involving approximately 21,000 potential class action claimants. In April 2019, the parties engaged in a Mediation. On June 14, 2019, the parties entered into a Settlement Agreement, which was approved by the arbitrator on June 19, 2019. Pursuant to the Settlement Agreement, all claimants under both the FLSA and the Rule 23 Claims will be required to fill out and send a claim form to the Third-Party Administrator within the claim period ending on October 15, 2019 in order to receive funds under the settlement. Subsequent to June 30, 2019, Ibex funded $3,351,244 toward the settlement fund provided under the Settlement Agreement. This amount covers 100% of the possible claims under the FLSA, as well as plaintiffs’ attorney fees, administration costs and service awards. These amounts exclude any amounts that Ibex may need to fund for the Rule 23 Claims. Any funds not claimed pursuant to the FLSA portion of the settlement will revert to Ibex. Pursuant to the Settlement Agreement, there is $2.2 million allocated to the settlement of claims for the Rule 23 class members. The exact amount of recovery with respect to the Rule 23 Claims depends upon the claim forms properly and timely returned to the Third-Party Administrator. The claim period closed on October 15, 2019 and as of that date, claim forms properly and timely returned for the Rule 23 Class Members accounted for $1.2M of the $2.2M allocated funds for the Rule 23 class. The parties appeared before the arbitrator on November 7, 2019 and the Arbitrator granted final approval of the Rule 23 claims.