Technical Mediation Clause Samples

Technical Mediation a. The parties agree to use a process of Technical Mediation to help resolves disputes during construction or over warranty claims that are of a technical nature. Such technical disputes are: fabrication; Specifications;‌ 1) disputes as to quality of work, materials, parts, equipment, or 2) disputes as to conformity of work with the Plans and 3) disputes as to deficiencies noted on delivery certificates; 4) disputed change orders having a value under $75,000; 5) disputed warranty claims having a value under $75,000; and 6) any other dispute of a similar technical nature that the parties agree to submit to Technical Mediation. b. The Technical Mediation shall be conducted in the shipyard facility where the Vessel is being constructed if before delivery, and in San Francisco if after delivery. If the parties are unable to agree on an individual to serve as technical mediator, the manager of the American Bureau of Shipping Technical Services office in San Francisco (or its successor entity) shall appoint one. The technical mediator shall be a commercial executive, naval architect, marine surveyor, ship builder, or ship repairer only, and in any event knowledgeable with regard to marine construction. The technical mediator shall promptly hear and consider all information presented by the parties about the dispute, shall assist the parties in resolving the dispute, and if requested by either party, make recommendations as to how the mediator would rule on the dispute as a fact finder. Any expenses of the technical mediator in connection with resolution of technical disputes shall be shared equally by the parties. Any other costs and expenses incurred by a party relating to Technical Mediation, including attorneys’ fees, shall be borne by that party only. Any decision or recommendation of the technical mediator is non-binding on the parties unless the parties mutually agree in writing in advance of the decision or recommendation that the mediator’s decision or recommendation is to be final and binding as if made in a binding arbitration. Any non-binding matter submitted to Technical Mediation may subsequently be resolved through litigation.