Common use of Non-Binding Arbitration Clause in Contracts

Non-Binding Arbitration. (a) It is the intent of the Parties to resolve the Dispute between them whenever possible by mutual and voluntary settlement rather than through any binding dispute resolution process. In support of this, the Parties acknowledge that, except as otherwise provided herein, if the Dispute cannot be settled through the Informal Resolution Procedures, the Parties agree first to submit their Dispute to non-binding arbitration as a condition precedent to filing litigation under Section 20.4.2. The Parties recognize that non-binding arbitration is a process to assist them in resolving their Disputes by making their own free and informed choices and that the arbitrator will have no authority to impose a binding award on any Party but only to issue an advisory decision. The non -binding award cannot be entered as a judgment in any court, except on mutual consent of the Parties, nor can it be cited as evidence or precedent with any preclusive effect in any court or other proceeding. (b) A Party shall initiate the non-binding arbitration process by serving a written demand for arbitration on the other Party's designated agent. Unless otherwise indicated by written notice from one Party to the other Party, each Party's designated agent shall be its Dispute Representative. The arbitration demand shall contain a concise statement of the matters set forth in Section 20.3.1(a). (c) The receiving Party shall respond to the demand for arbitration within ten (10) Business Days of receipt thereof. (d) The Parties shall attempt in good faith to select an arbitrator to which they mutually agree within ten (10) Business Days of the notice of non-binding arbitration. If the Parties are unable to agree on an arbitrator, the Parties agree to select from the most current list of mediators as maintained by the Indiana Supreme Court Division of State Court Administration (the “List of Mediators”). In the event the Parties cannot agree, the arbitrator shall be selected through a striking process by which (i) each Party shall propose ten (10) names appearing on the List of Mediators, (ii) Provider shall strike two (2) names, followed by Commission striking two (2) names and thereafter each Party shall alternately strike two (2) additional names until eight (8) remain, and (iii) from such eight (8) remaining names Provider shall then strike one (1) name, followed by the Commission striking one (1) name and thereafter each Party shall alternately strike one (1) additional name until two (2) names remain, a t which point the Parties shall select the arbitrator from the remaining candidates by coin flip or other act of random chance. In the event that the arbitrator selected does not agree to serve, then the arbitrator whose name was stricken immediately before shall be selected. This procedure shall be repeated, if necessary, until an arbitrator who agrees to serve is selected. Unless mutually agreed otherwise, the Parties shall complete the process of selecting an arbitrator within twenty (20) days of the notice initiating non-binding arbitration. (e) The cost of the arbitration shall be equally divided between the Parties, regardless of (f) Unless otherwise agreed, the arbitration hearing shall take place in Indianapolis, Indiana, at a location to be mutually agreed upon or determined by the arbitrator. The hearing shall be scheduled for a date no later than 90 days after the demand for arbitration is sent. (g) The rules of discovery shall apply. Unless agreed otherwise, each Party shall be entitled to take no more than two depositions. (h) No later than thirty days before the hearing, each Party shall provide the arbitrator and the opposing Party with a listing of witnesses and documentary evidence to be considered. The listing of witnesses shall designate those to be called in person, by deposition and/or by written report. (i) Unless otherwise agreed, all documents the Parties desire to be considered in the arbitration process shall be filed with the arbitrator and exchanged between the Parties no later than thirty (30) days prior to the arbitration hearing. In addition, no later than fifteen (15) days prior to hearing, each Party may file with the arbitrator a pre-a rbitration brief setting forth the factual and legal positions as to the issues being arbitrated. (j) Unless agreed otherwise, the arbitration hearing shall be limited to three days, and the arbitrator shall issue its written determination within twenty (20) days of the close of the hearing and shall serve a copy of this determination on the Parties who participated in the arbitration. (k) If the non-binding arbitration is not completed and the Parties do not reach a mutually agreeable settlement within one hundred and twenty (120) days after initiation of the non-binding arbitration, either Party may continue to pursue the Dispute by filing a complaint in the ▇▇▇▇▇▇ County, Indiana Circuit/Superior Court, or the Parties may mutually agree to extend the time for non-binding arbitration. (l) If neither Party rejects the arbitrator's non-binding determination within thirty (30) days of its being issued by the arbitrator, such decision shall become final and binding as between the Parties, and shall be enforceable in any court of competent jurisdiction. (m) In the event one Party rejects the arbitrator's determination, it shall send a notice of its objection/rejection to the other Party within thirty (30) days of such decision and either Party may proceed with state court litigation as provided in Section 20.4.2. (n) The non-binding arbitration proceedings shall be considered as settlement negotiations and shall be governed by Section 20.5(a). (o) In the event the amount at issue in the Dispute is greater than Two Million Dollars ($2,000,000), then at the Commission's sole discretion the Dispute may proceed directly from the Informal Resolution Procedures to state court litigation pursuant to Section

Non-Binding Arbitration. (a) It is the intent of the Parties to resolve the Dispute dispute between them whenever possible by mutual and voluntary settlement rather than through any binding dispute resolution process. In support of this, the Parties acknowledge that, except as otherwise provided herein, if the Dispute dispute cannot be settled through the Informal Resolution Proceduresinformal resolution procedures set forth in Section 19.7, the Parties agree first to submit their Dispute dispute to non-binding arbitration as a condition precedent to filing litigation under Section 20.4.219.8.2. The Parties recognize that non-binding arbitration is a process to assist them in resolving their Disputes disputes by making their own free and informed choices and that the neutral arbitrator will have no authority to impose a binding award on any Party but only to issue an advisory decision. The non -binding non-binding award cannot be entered as a judgment in any court, except on mutual consent of the Parties, nor can it be cited as evidence or precedent with any preclusive effect in any court or other proceeding. (b) A Party shall initiate the non-binding arbitration process by serving a written demand for arbitration on the other Party's designated agent. Unless otherwise indicated by written notice from one Party to the other Party, each Party's designated agent shall be its Dispute Authorized Representative. The arbitration demand shall contain a concise statement of the matters set forth in Section 20.3.1(afollowing: i. The date of the act, inaction or omission giving rise to the dispute; ii. An explanation of the dispute, including a description of its nature, circumstances and cause; iii. A reference to any pertinent provision(s) from the Contract Documents; and iv. If applicable, the estimated dollar amount of the dispute, and how that estimate was determined (including any cost and revenue element that has been or may be affected). (c) The receiving Party shall respond to the demand for arbitration within ten twenty-one (1021) Business Days days of receipt thereof. (d) The Parties shall attempt in good faith to select an arbitrator to which they mutually agree within ten (10) Business Days days of the notice of demand for non-binding arbitration. If the Parties are unable to agree on an arbitrator, the Parties agree to select from the most current list of mediators arbitrators as maintained by the Indiana Supreme Court Division of State Court Administration (the “List of Mediators”)Administration. In the event If the Parties cannot agree, the arbitrator shall be selected through a striking process by which (i) each the initiating Party shall propose ten (10) names appearing strike first. The Parties shall proceed with the striking process until only one arbitrator remains on the List of Mediators, (ii) Provider shall strike two (2) names, followed by Commission striking two (2) names and thereafter each Party shall alternately strike two (2) additional names until eight (8) remain, and (iii) from such eight (8) remaining names Provider shall then strike one (1) name, followed by the Commission striking one (1) name and thereafter each Party shall alternately strike one (1) additional name until two (2) names remain, a t which point the Parties shall select the arbitrator from list. If the remaining candidates by coin flip or other act of random chance. In the event that the arbitrator selected does not agree to serve, then the arbitrator arbitrator's whose name was stricken immediately before shall be selected. This procedure shall be repeated, if necessary, until an arbitrator who agrees to serve is selected. Unless mutually agreed otherwise, the Parties shall complete the process of selecting an arbitrator within twenty (20) days of the notice Notice initiating non-binding arbitration. (e) The cost of the arbitration shall be equally divided between the Parties, regardless ofof outcome. (f) Unless otherwise agreed, the arbitration hearing shall take place in IndianapolisJeffersonville, Indiana, at a location to be mutually agreed upon or determined by the arbitrator. The hearing shall be scheduled for a date no later than 90 ninety (90) days after the demand for arbitration is sent. (g) The rules of discovery shall apply. Notwithstanding the preceding sentence, each Party shall disclose to the other Party witnesses and exhibits intended for use in the proceedings. The claiming Party shall make all of its disclosures no later than forty-five (45) days after the date of the filing of the demand for arbitration under Section 19.8.1(b). The responding Party shall make all of its disclosures no later than thirty (30) days after such date. Unless agreed otherwise, each Party shall be entitled to take no more than two depositions. (h) No later than thirty (30) days before the hearing, each Party shall provide the arbitrator and the opposing Party with a listing of witnesses and documentary evidence to be considered. The listing of witnesses shall designate those to be called in person, by deposition and/or by written report. (i) Unless otherwise agreed, all documents the Parties desire to be considered in the arbitration process shall be filed with the arbitrator Arbitrator and exchanged between the Parties no later than thirty fifteen (3015) days prior to the arbitration hearing. In addition, no later than fifteen five (155) days prior to hearing, each Party may file with the arbitrator a pre-a rbitration arbitration brief setting forth the factual and legal positions as to the issues being arbitrated. (j) Unless agreed otherwise, the arbitration hearing shall be limited to three (3) days, and the arbitrator shall issue its written determination within twenty (20) days of the close of the hearing and shall serve a copy of this determination on the Parties who participated in the arbitration. (k) If the non-binding arbitration is not completed and the Parties do not reach a mutually agreeable settlement within one hundred and twenty (120) days after initiation of the non-binding arbitration, either Party may continue to pursue the Dispute dispute by filing a complaint in the ▇▇▇▇▇▇ County, Indiana Circuit/Superior CourtCourt located in ▇▇▇▇▇ County, Indiana, or the Parties may mutually agree to extend the time for non-binding arbitration. (l) If neither Party rejects the arbitrator's non-binding determination within thirty (30) days of its being issued by the arbitrator, such decision shall become final and binding as between the Parties, and shall be enforceable in any court of competent jurisdiction. (m) In the event If one Party rejects the arbitrator's determination, then it shall send a notice of its objection/rejection to the other Party within thirty (30) days of such decision and either Party may proceed with state court litigation as provided in Section 20.4.219.8.2. (n) The non-binding arbitration proceedings shall be considered as settlement negotiations and shall be governed by Section 20.5(a)19.9.1. (o) In the event If the amount at issue in the Dispute dispute is greater than Two Million Dollars ($2,000,000)5,000,000, then at the CommissionJoint Board's sole discretion the Dispute may proceed directly from the Informal Resolution Procedures informal resolution procedures in Section 19.7.3 to state court litigation pursuant per Section 19.8.2. The Joint Board shall advise TSP of its decision to Sectionforgo the non-binding arbitration procedures by notice submitted no later than the date by which the response to an arbitration demand is due. For clarification, if there is no arbitration hearing and decision under the paragraph, then the attorneys' fees provisions in Section 19.8.2(b) shall not apply.