Common use of Non-Binding Mediation Clause in Contracts

Non-Binding Mediation. Any Dispute not resolved pursuant to Section 7.1 shall, upon the written request of a Party (a “Mediation Request”), be submitted to nonbinding mediation in accordance with the then current JAMS International Mediation Rules (the “Mediation Rules”), except as modified herein. The mediation shall be held in (i) Fremont, California or (ii) such other place as the Parties may mutually agree in writing. The Parties shall have twenty (20) days from receipt by a Party of a Mediation Request to agree on a mediator. If no mediator has been agreed upon by the Parties within twenty (20) days of receipt by a party of a Mediation Request, then a Party may request (on written notice to the other Party), that JAMS appoint a mediator in accordance with the Mediation Rules. All mediation pursuant to this clause shall be confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence, and no oral or documentary representations made by the Parties during such mediation shall be admissible for any purpose in any subsequent proceedings. No Party shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by the other Party in the mediation proceedings or about the existence, contents or results of the mediation without the prior written consent of such other Party, except in the course of a judicial or regulatory proceeding or as may be required by Law or requested by a Governmental Authority or securities exchange. Before making any disclosure permitted by the preceding sentence, the Party intending to make such disclosure shall, to the extent reasonably practicable, give the other Party reasonable written notice of the intended disclosure and afford the other party a reasonable opportunity to protect its interests. If the Dispute has not been resolved within sixty (60) days of the appointment of a mediator, or within ninety (90) days after receipt by a Party of a Mediation Request (whichever occurs sooner), or within such longer period as the Parties may agree to in writing, then the Dispute shall be submitted to binding arbitration in accordance with Section 7.3.

Non-Binding Mediation. Any Dispute Conflict not resolved pursuant in accordance with Clauses 9.11 or 9.11.1 above may be submitted to Section 7.1 shallmediation, upon provided that jointly requested by the written request Parties before the Arbitration and Mediation Center of a Party the Brazil-Canada Chamber of Commerce – CAM-CCBC (a “Mediation RequestChamber”), be submitted to nonbinding mediation in accordance with the then current JAMS International Mediation Rules Regulation of the Mediation Chamber (the “Mediation RulesRegulation”), except as modified hereinfor the modifications agreed between the Parties in this Clause. The mediation shall be held conducted in (i) Fremontthe municipality of São Paulo, California or (ii) such other place as State of São Paulo, except if otherwise agreed by the Parties may mutually agree in writingParties. The Parties shall have twenty (20) days from receipt by a Party of a Mediation Request to agree on a mediator. If no mediator has been agreed upon by the Parties shall, within twenty (20) days of receipt by days, jointly appoint a party of a Mediation Request, then a Party may request (on written notice mediator. In the event the Parties are not able to achieve an agreement with respect to the other Party)mediator within such period, that JAMS appoint a the mediator shall be appointed in accordance conformity with the Mediation RulesRegulation. All The mediation pursuant to set forth in this clause Clause shall be confidential and shall be treated as compromise and settlement negotiations for purposes confidential, in the sense that none of applicable rules of evidence, and no oral or documentary representations made by the Parties during such mediation shall be admissible for any purpose in any subsequent proceedings. No Party shall disclose or permit authorize the disclosure of any information about the information, evidence adduced or the documents produced document prepared by the other Party in the mediation proceedings or about course of the mediation, as well as the existence, contents or results decisions in connection with the mediation, without the previous consent in writing of the mediation without the prior written consent of such other Party, except in for the course of a judicial or regulatory proceeding or as may be exact extension required by the applicable Law or requested by a Governmental Authority or securities exchange. Before making in force, taking into account that, before any disclosure permitted by under the preceding sentenceapplicable Law in force, the disclosing Party intending to make such disclosure shall, to the extent reasonably practicablepermitted by the applicable Law in force, give notify the other Party reasonable written notice of with respect to such disclosure so that the intended disclosure and afford the other party a reasonable opportunity respective Party is able to protect its the related rights and interests. If In the Dispute event the mediation has been conducted and the Conflict has not been resolved within sixty (60) days as from the request of the appointment of a mediatormediation before the Mediation Chamber, or within ninety (90) days after receipt another term agreed by a Party of a Mediation Request (whichever occurs sooner), or within such longer period as the Parties under the terms of the mediation, the Conflict may agree to in writing, then the Dispute shall be submitted to binding arbitration in accordance with Section 7.3arbitration, pursuant to Clause 9.11.3 below.

Non-Binding Mediation. Any If the parties are unable to resolve a Dispute not resolved pursuant by mutual agreement, they shall promptly attempt in good faith to Section 7.1 shallresolve the Dispute by non- binding mediation in Lake County, upon the written request of a Party (a “Mediation Request”)Florida, be submitted to nonbinding mediation in accordance with the then current JAMS International Mediation Rules (the “Mediation Florida Supreme Court Rules”), except as modified herein. The mediation shall be held in (i) Fremont, California or (ii) such other place as the Parties may mutually agree in writing. The Parties shall have twenty (20) days from receipt by a Party of a Mediation Request to agree on a mediator. If no mediator has been agreed upon by the Parties within twenty (20) days of receipt by a party of a Mediation Request, then a Party may request (on written notice to the other Party), that JAMS appoint a mediator in accordance with the Mediation Rules. All mediation pursuant to this clause shall be confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence, and no oral or documentary representations made by the Parties during such mediation shall be admissible for any purpose in any subsequent proceedings. No Party shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by the other Party in the mediation proceedings or about the existence, contents or results of the mediation without the prior written consent of such other Party, except in the course of a judicial or regulatory proceeding or as may be required by Law or requested by a Governmental Authority or securities exchange. Before making any disclosure permitted by the preceding sentence, the Party intending to make such disclosure shall, to the extent reasonably practicable, give the other Party reasonable written notice of the intended disclosure and afford the other party a reasonable opportunity to protect its interests. If the Dispute has not been resolved within sixty (60) days of the appointment of a mediator, or within ninety (90) days after receipt by a Party the appointment of a certified civil mediator who maintains a law or dispute resolution practice in central Florida, and is mutually acceptable to the parties. Any party may elect to submit the Dispute to mediation by delivering written notice to the other party that sets forth with particularity the nature of its claim or demand, the authority for making the claim or demand, and a proposed remedy or the nature and extent of any monetary claim. After consultation with the parties and their counsel, the mediator shall fix a reasonable time and place in Lake County for the mediation conference within the time limits prescribed by this Section. The mediation conference shall be scheduled for no less than one full working day, and each party and its primary counsel shall attend the mediation conference. If either a party or its primary legal counsel fails to attend the mediation conference, that party shall be liable for the other party’s reasonable cost of attending the mediation conference, including the mediator’s fee and the other party’s attorney fees and costs. Except as provided in the preceding sentence, the parties shall share equally the costs of mediation, including the fees of the mediator and any rental or other cost of obtaining a place for the mediation, but excluding their own expenses and attorney fees. If the parties reach a mutually acceptable settlement of the Dispute during the mediation, they shall record the settlement in a written settlement agreement that will be binding on both of them. Neither party shall terminate the mediation unless each of them has participated (or been afforded an opportunity to participate) in the mediation and is unable to agree on a settlement. Mediation Request (whichever occurs sooner)discussions between parties and opinions of the mediator are confidential and are not permitted to be relied on, referred to, or within such longer period introduced as evidence in any subsequent litigation or other legal proceeding. All applicable statutes of limitation will be tolled during the Parties may agree pendency of mediation, and the parties to in writing, then the Dispute mediation shall be submitted take any and all action that is necessary to binding arbitration in accordance with Section 7.3accomplish that tolling.

Non-Binding Mediation. Any Dispute not resolved pursuant Except for the right of each Party to Section 7.1 shallapply to a court of competent jurisdiction for a temporary restraining order, upon the written request preliminary injunction, or other equitable relief, any and all claims, disputes or controversies arising under, out of, or in connection with this agreement (including patent validity, claim for theft of a Party (a “Mediation Request”)trade secrets, be submitted to nonbinding mediation in accordance with the then current JAMS International Mediation Rules (the “Mediation Rules”)unauthorized disclosure of confidential information, except as modified herein. The mediation shall be held in (idamages, restitution, rescission or reformation, or any combination of such remedies) Fremont, California or (ii) such other place as that the Parties may mutually agree in writing. The Parties shall have twenty (20) days from receipt by a Party of a Mediation Request are unable to agree on a mediator. If no mediator has been agreed upon by the Parties within twenty (20) days of receipt by a party of a Mediation Request, then a Party may request (on written notice to the other Party), that JAMS appoint a mediator in accordance with the Mediation Rules. All mediation pursuant to this clause shall be confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence, and no oral or documentary representations made by the Parties during such mediation shall be admissible for any purpose in any subsequent proceedings. No Party shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by the other Party in the mediation proceedings or about the existence, contents or results of the mediation without the prior written consent of such other Party, except in the course of a judicial or regulatory proceeding or as may be required by Law or requested by a Governmental Authority or securities exchange. Before making any disclosure permitted by the preceding sentence, the Party intending to make such disclosure shall, to the extent reasonably practicable, give the other Party reasonable written notice of the intended disclosure and afford the other party a reasonable opportunity to protect its interests. If the Dispute has not been resolved resolve within sixty (60) days following written notice of a dispute including an attempt to resolve the dispute, will be mediated through non-binding mediation in good faith as follows: The Party raising such dispute shall promptly provide notice to the other Party of its claim, dispute or controversy in a writing that describes in reasonable detail the nature of the appointment of a mediator, or within ninety dispute (90“Dispute Notice”). By not later than twenty (20) business days after receipt the recipient has received the Dispute Notice, each Party shall have selected for itself a representative who has the authority to bind such Party, and shall additionally have advised the other Party in writing of the name and title of such representative. These representatives shall meet in person and in good faith attempt to resolve the dispute within sixty days of the Dispute Notice. If they fail to resolve it, then by a Party of a Mediation Request not later than twenty (whichever occurs sooner)20) business day after their meeting date, or within such longer period as the Parties may shall each notify the other of two acceptable mediators and the representatives shall promptly select and agree to in writingupon one commonly acceptable mediator for a mediation hearing. Within thirty days thereafter, then the Dispute Parties shall enter into good faith mediation and shall share the costs of mediation equally; provided, however, that each Party shall pay its own attorneys’ fees. If the representatives of the Parties do not resolve the dispute within thirty (30) business days after the mediation hearing, the Parties shall be submitted deemed to binding arbitration in accordance with Section 7.3have satisfied this requirement for mediation.

Non-Binding Mediation. Any Dispute If within ten Business Days following initial receipt by the Members of the notice of further negotiations neither (x) at least the Required Interest votes for such matter or proposal nor (y) at least the Required Interest votes against (not resolved pursuant including abstentions or other non-votes) such matter or proposal, then any Member may subject the matter or proposal to Section 7.1 shall, upon non-binding mediation by giving written notice of mediation to the written request of a Party (a “Mediation Request”), be submitted to nonbinding mediation in accordance with the then current JAMS International Mediation Rules (the “Mediation Rules”), except as modified hereinother Members within five Business Days thereafter. The notice of mediation shall state the identity of the single mediator selected by the Member initiating mediation and contain a detailed statement of the nature of the dispute to be mediated and the remedy or resolution sought by the Member initiating mediation. Neither the Members nor the mediator will have the right to conduct any further discovery relating to such mediation. The Member or Members initiating mediation shall pay the fees of the mediator; provided, however, that if the vote of the Members changes as a result of such mediation, then the Company shall pay all such fees and each of the Members' costs related to such mediation. Unless otherwise agreed by all of the Members, the mediation proceedings shall be held in Houston, Texas at such location selected by the mediator and shall begin as soon as practicable, but not less than five Business Days following the mailing of the initiating Member's notice of mediation. If within five Business Days following initiation of mediation proceedings neither (ix) Fremont, California at least the Required Interest votes for such matter or proposal nor (iiy) at least the Required Interest votes against (not including abstentions or other non-votes) such other place as the Parties may mutually agree in writing. The Parties shall have twenty (20) days from receipt by a Party of a Mediation Request to agree on a mediator. If no mediator has been agreed upon by the Parties within twenty (20) days of receipt by a party of a Mediation Requestmatter or proposal, then a Party may request (on written notice to the other Party), that JAMS appoint a mediator in accordance with the Mediation Rules. All mediation pursuant to this clause shall be confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence, and no oral or documentary representations made by the Parties during such mediation shall terminate and such matter or proposal will no longer be admissible for subject to further negotiation or mediation. Except with respect to the matters expressly specified in Section 16.5(a) and Section 16.8, no Member shall have the right to demand mediation with respect to any purpose in dispute, difference or question arising between any subsequent proceedings. No Party shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by the other Party in the mediation proceedings or about the existence, contents or results of the mediation without Members themselves or any Member and the prior written consent of such other Party, except in the course of a judicial or regulatory proceeding or as may be required by Law or requested by a Governmental Authority or securities exchange. Before making any disclosure permitted by the preceding sentence, the Party intending to make such disclosure shall, to the extent reasonably practicable, give the other Party reasonable written notice of the intended disclosure and afford the other party a reasonable opportunity to protect its interests. If the Dispute has not been resolved within sixty (60) days of the appointment of a mediator, or within ninety (90) days after receipt by a Party of a Mediation Request (whichever occurs sooner), or within such longer period as the Parties may agree to in writing, then the Dispute shall be submitted to binding arbitration in accordance with Section 7.3Company.

Non-Binding Mediation. Any Except as set forth in Section 12.01 herein, the Participants will submit all Disputes to non-binding mediation. The Participants involved, however, shall have the right to submit any Dispute not resolved pursuant that has been identified as one that the Participants want to Section 7.1 shall, upon resolve in an expedited manner directly to “fast-track” binding arbitration without first attempting to mediate such Dispute. The Participants will start the written request mediation process by filing a Request for Mediation with the American Arbitration Association (AAA). The Request for Mediation must include a brief description of a Party (a “Mediation Request”), the nature of the Dispute. The appropriate administrative fee must also be submitted to nonbinding AAA with the Request for Mediation. AAA will then select a mediator that has experience in the subject matter of the Dispute from its roster of available mediators within ten (10) days and will provide a provide a biographical sketch of the mediator to the Participants. If the mediator is not reasonably acceptable to all Participants involved in such Dispute, any Participant involved in the Dispute may request that the AAA replace the mediator with another mediator from the AAA’s roster. The mediator will then meet with the Participants to resolve the Dispute on the first mutually available date. The mediation will be conducted in accordance with the then current JAMS International Commercial Mediation Rules (of the “Mediation Rules”), except as modified hereinAAA. The Participants may agree in writing upon a time limit for the resolution of the Dispute through mediation, but absent such agreement the mediation shall be held continue for no more than thirty (30) days from the appointment of the mediator. If the Participants reach an agreement through mediation, they will put the terms of their agreement in writing and execute and exchange releases of claims. If: (i) Fremont, California the mediator is unable to resolve the Dispute within the time limit agreed upon in writing by the Participants; or (ii) any Participant to the mediation is dissatisfied with the results of such other place as mediation, then any Participant to the Parties Dispute may mutually agree demand that the Dispute be referred to “fast track” binding arbitration pursuant to the procedures set forth in writingSection 12.04 herein. The Parties shall have twenty (20) days from receipt by a Party Participants will share equally in the cost of a Mediation Request to agree on a mediator. If no mediator has been agreed upon by the Parties within twenty (20) days of receipt by a party of a Mediation Request, then a Party may request (on written notice to the other Party), that JAMS appoint a mediator in accordance with the Mediation Rules. All any mediation initiated pursuant to this clause shall be confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence, and no oral or documentary representations made by the Parties during such mediation shall be admissible for any purpose in any subsequent proceedings. No Party shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by the other Party in the mediation proceedings or about the existence, contents or results of the mediation without the prior written consent of such other Party, except in the course of a judicial or regulatory proceeding or as may be required by Law or requested by a Governmental Authority or securities exchange. Before making any disclosure permitted by the preceding sentence, the Party intending to make such disclosure shall, to the extent reasonably practicable, give the other Party reasonable written notice of the intended disclosure and afford the other party a reasonable opportunity to protect its interests. If the Dispute has not been resolved within sixty (60) days of the appointment of a mediator, or within ninety (90) days after receipt by a Party of a Mediation Request (whichever occurs sooner), or within such longer period as the Parties may agree to in writing, then the Dispute shall be submitted to binding arbitration in accordance with Section 7.312.02.

Non-Binding Mediation. Any If the parties are unable to resolve a Dispute not resolved pursuant by mutual agreement, they shall promptly attempt in good faith to Section 7.1 shallresolve the Dispute by non- binding mediation in Lake County, upon the written request of a Party (a “Mediation Request”)Florida, be submitted to nonbinding mediation in accordance with the then current JAMS International Mediation Florida Supreme Court Rules (the “Mediation Rules”), except as modified herein. The mediation shall be held in (i) Fremont, California or (ii) such other place as the Parties may mutually agree in writing. The Parties shall have twenty (20) days from receipt by a Party of a Mediation Request to agree on a mediator. If no mediator has been agreed upon by the Parties within twenty (20) days of receipt by a party of a Mediation Request, then a Party may request (on written notice to the other Party), that JAMS appoint a mediator in accordance with the Mediation Rules. All mediation pursuant to this clause shall be confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence, and no oral or documentary representations made by the Parties during such mediation shall be admissible for any purpose in any subsequent proceedings. No Party shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by the other Party in the mediation proceedings or about the existence, contents or results of the mediation without the prior written consent of such other Party, except in the course of a judicial or regulatory proceeding or as may be required by Law or requested by a Governmental Authority or securities exchange. Before making any disclosure permitted by the preceding sentence, the Party intending to make such disclosure shall, to the extent reasonably practicable, give the other Party reasonable written notice of the intended disclosure and afford the other party a reasonable opportunity to protect its interests. If the Dispute has not been resolved within sixty (60) days of the appointment of a mediator, or within ninety (90) days after receipt by a Party the appointment of a certified civil mediator who maintains a law or dispute resolution practice in central Florida, and is mutually acceptable to the parties. Any party may elect to submit the Dispute to mediation by delivering written notice to the other party that sets forth with particularity the nature of its claim or demand, the authority for making the claim or demand, and a proposed remedy or the nature and extent of any monetary claim. After consultation with the parties and their counsel, the mediator shall fix a reasonable time and place in Lake County for the mediation conference within the time limits prescribed by this Section. The mediation conference shall be scheduled for no less than one full working day, and each party and its primary counsel shall attend the mediation conference. If either a party or its primary legal counsel fails to attend the mediation conference, that party shall be liable for the other party’s reasonable cost of attending the mediation conference, including the mediator’s fee and the other party’s attorney fees and costs. Except as provided in the preceding sentence, the parties shall share equally the costs of mediation, including the fees of the mediator and any rental or other cost of obtaining a place for the mediation, but excluding their own expenses and attorney fees. If the parties reach a mutually acceptable settlement of the Dispute during the mediation, they shall record the settlement in a written settlement agreement that will be binding on both of them. Neither party shall terminate the mediation unless each of them has participated (or been afforded an opportunity to participate) in the mediation and is unable to agree on a settlement. Mediation Request (whichever occurs sooner)discussions between parties and opinions of the mediator are confidential and are not permitted to be relied on, referred to, or within such longer period introduced as evidence in any subsequent litigation or other legal proceeding. All applicable statutes of limitation will be tolled during the Parties may agree pendency of mediation, and the parties to in writing, then the Dispute mediation shall be submitted take any and all action that is necessary to binding arbitration in accordance with Section 7.3accomplish that tolling.

Non-Binding Mediation. Any Dispute not resolved pursuant Except with respect to matters for which a Member or the Company believes it necessary to seek equitable relief permitted under a written agreement, or otherwise to prevent irreparable harm to such party, each party to this Agreement agrees to enter into mediation and to cause the Governors appointed by the Appointing Members agrees to enter into mediation, of all disputes involving this Agreement or any aspect of their business relationship (including without limitation any deadlock of the Board or the Members required by Section 7.1 shall9.6 to be mediated, upon the written request of a Party (a “Mediation Request”), be submitted to nonbinding mediation in accordance with the then current JAMS International Mediation Rules (the “Mediation Rules”), except as modified herein. The mediation shall be held in (i) Fremont, California or (ii) such other place as the Parties may mutually agree in writing. The Parties shall have twenty (20) days from receipt by a Party of a Mediation Request and including any failure to agree on a mediator. If no mediator has been agreed upon by the Parties within twenty Final Price under Section 13.8), for a minimum of four (204) days hours of receipt by a party of a Mediation Requestmediation, then a Party may request (on written notice prior to the initiation of any arbitration, legal action or claim against any other Party), that JAMS appoint a mediator in accordance with the Mediation Rulesparty. All mediation pursuant to this clause shall be confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence, and no oral or documentary representations made by the Parties during such Such mediation shall be admissible for conducted pursuant to Section 21 of the Participation Agreement. Any decision or other actions of a mediator under this Agreement or the Participation Agreement shall not be binding upon the Board, any purpose in Member or the Company; and no such mediator shall have the authority to impose a settlement upon the Board, any subsequent proceedingsMember or the Company. No Party Rather any mediator shall disclose or permit attempt to assist the disclosure Board, the Members and the Company (as applicable) to reach a satisfactory resolution of such matter. If a notice of any information about the evidence adduced action, inaction, condition or the documents produced event alleged to be a default by an Appointing Member has been issued by the other Party in Appointing Member pursuant to Section 6.6, and such default is subject to cure before actually becoming an Event of Default, the period for cure shall be tolled until the mediation proceedings under this Section 16.13 is complete; provided, however, that the request for mediation was made at least ten (10) days before such action, inaction, condition or about event shall become an Event of Default. However, such tolling shall not apply to any payments owed to third parties if the existence, contents or results of the mediation without the prior written consent of such other Party, except in the course of a judicial or regulatory proceeding or as may be required by Law or requested by a Governmental Authority or securities exchange. Before making any disclosure permitted by the preceding sentence, the Party intending failure to make such disclosure shallpayment would result in any significant penalties to any Member, to the extent reasonably practicable, give Company or the other Party reasonable written notice of the intended disclosure and afford the other party a reasonable opportunity to protect its interests. If the Dispute has not been resolved within sixty (60) days of the appointment of a mediator, or within ninety (90) days after receipt by a Party of a Mediation Request (whichever occurs sooner), or within such longer period as the Parties may agree to in writing, then the Dispute shall be submitted to binding arbitration in accordance with Section 7.3Paskenta Tribe.

Non-Binding Mediation. Any Dispute not resolved pursuant Except as provided herein, no action, suit or proceeding with respect to Section 7.1 shallany dispute, upon claim or controversy arising out of or relating to this Agreement may be commenced until the written request of a Party (a “Mediation Request”), be matter has been submitted to nonbinding mediation in accordance with the then current JAMS International Mediation Rules (the “Mediation Rules”), except as modified herein. The mediation shall be held in (i) Fremont, California or (ii) such other place as the Parties may mutually agree in writinga mediator for non-binding mediation. The Parties shall have twenty (20) days from receipt by a Party of a Mediation Request agree to agree on a mediator. If no mediator has been submit such dispute, claim or controversy to JAMS, or its successor, or another forum mutually agreed upon by the Parties within twenty (20) days of receipt by a party of a the "Mediation Request, then a Forum"). Either Party may request (on written notice commence non-binding mediation by providing to the Mediation Forum and the other Party)Party a written request for non-binding mediation, that JAMS appoint a mediator in accordance setting forth the subject of the dispute, claim or controversy and the relief requested. The Parties agree to cooperate with the Mediation Rules. All mediation pursuant to this clause shall be confidential Forum and shall be treated as compromise and settlement negotiations for purposes with one another in selecting a mediator from the Mediation Forum's panel of applicable rules of evidenceneutral mediators, and no in scheduling the mediation proceedings. The Parties agree that they will participate in the non-binding mediation in good faith, and that they will share equally in its costs. The Parties agree that all offers, promises, conduct and statements, whether oral or documentary representations written, made by the Parties during such mediation shall be admissible for any purpose in any subsequent proceedings. No Party shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by the other Party in the mediation proceedings or about the existence, contents or results of the mediation without the prior written consent of such other Party, except in the course of the non-binding mediation by any of the Parties, their agents, employees, experts and attorneys, and by the mediator and any other employees of the Mediation Forum, shall be confidential, privileged and inadmissible for any purpose, including impeachment, in any action, suit or proceeding involving the Parties; provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a judicial result of this Section 12.12(a). Either Party may seek equitable relief prior to this non-binding mediation to preserve the status quo pending the completion of such non-binding mediation. Except for such an action, suit or regulatory proceeding to obtain such equitable relief, neither Party may commence any other action, suit or as proceeding with respect to the matters submitted to non-binding mediation until after the earlier to occur of the completion of the initial mediation session or 60 days after the date of delivering the written request for mediation. Mediation may continue after the commencement of an action, suit or proceeding, if the Parties so desire. The provisions of this Section 12.12(a) may be required enforced by Law or requested by a Governmental Authority or securities exchange. Before making any disclosure permitted court of competent jurisdiction, and the Party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorney's fees, to be paid by the preceding sentence, the Party intending to make such disclosure shall, to the extent reasonably practicable, give the other Party reasonable written notice of the intended disclosure and afford the other party a reasonable opportunity to protect its interests. If the Dispute has not been resolved within sixty (60) days of the appointment of a mediator, or within ninety (90) days after receipt by a Party of a Mediation Request (whichever occurs sooner), or within such longer period as the Parties may agree to in writing, then the Dispute shall be submitted to binding arbitration in accordance with Section 7.3against whom enforcement is ordered.

Non-Binding Mediation. If the DRA refers the dispute to non-binding mediation, the following procedure will apply: The DRA shall have ten (10) days from the date of such referral to distribute a list of ten (10) qualified mediators to the disputing parties. Absent the express written consent of all disputing parties, no person shall be eligible for selection as mediator that is a past or present officer, employee or consultant to any of the disputing parties, or of any entity related to or affiliated with any of the disputing parties or has an interest in the matter to be mediated. Any Dispute individual designated as mediator shall make known to the disputing parties any such disqualifying relationship or interest and a new mediator shall be designated. If the disputing parties cannot resolved pursuant agree upon a mediator, the disputing parties shall take turns striking names from a list supplied by the DRA with a disputing party chosen by lot striking the first name. The last remaining name shall be designated as the mediator. If that individual is unable or unwilling to Section 7.1 shallserve, upon the written request of a Party (a “Mediation Request”), individual last stricken from the list shall be submitted designated and the process repeated until an individual is selected that is able and willing to nonbinding mediation serve. The disputing parties shall attempt in good faith to resolve their dispute in accordance with the then current JAMS International Mediation Rules schedule established by the mediator. In no event may the schedule extend beyond thirty (the “Mediation Rules”), except as modified herein. The mediation shall be held in (i) Fremont, California or (ii) such other place as the Parties may mutually agree in writing. The Parties shall have twenty (2030) days from receipt the date of appointment of the mediator. The mediator may require the disputing parties to: submit written statements of issues and positions; meet for discussions; provide expert testimony and exhibits; and comply with the mediation procedures designated by a Party of a Mediation Request to agree on a the DRA and/or the mediator. If no mediator has been agreed upon by the Parties disputing parties have not resolved the dispute within twenty thirty (2030) days of receipt the date the mediator was appointed, the mediator shall promptly provide the disputing parties and the DRA with a written, confidential, non-binding recommendation to resolve the dispute. The recommendation shall include an assessment by the mediator of the merits of the principal positions being advanced by each of the parties to the dispute. The parties to the dispute shall then meet in a party good faith attempt to resolve the dispute in light of the mediator's recommendation. This recommendation shall be limited to resolving the specific issues presented for mediation. If the disputing parties are still unable to resolve the dispute: any dispute not involving the proposed change or modification of a Mediation RequestISO Procedure, then a Party rate, Service Agreement, or an ISO Tariff provision may request (on written notice be referred to the other Party), that JAMS appoint a arbitration process described below; or any disputing party may resort to regulatory or judicial proceedings as provided under the ISO OATT or the ISO Services Tariff; and the recommendation of the mediator in accordance with the Mediation Rules. All mediation pursuant to this clause shall be confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence, and no oral or documentary representations any statement made by any party during the Parties during such mediation process shall not be admissible for any purpose in any subsequent proceedingsproceeding. No Party shall disclose or permit Each party to the disclosure of any information about the evidence adduced or the documents produced by the other Party in the mediation proceedings or about the existence, contents or results dispute will bear a pro rata share of the mediation without costs associated with the prior written consent of such time, expenses, and other Party, except in the course of a judicial or regulatory proceeding or as may be required by Law or requested by a Governmental Authority or securities exchange. Before making any disclosure permitted by the preceding sentence, the Party intending to make such disclosure shall, to the extent reasonably practicable, give the other Party reasonable written notice charges of the intended disclosure mediator. Each party shall bear its own costs, including attorney and afford the other party a reasonable opportunity to protect its interests. If the Dispute has not been resolved within sixty (60) days of the appointment of a mediator, or within ninety (90) days after receipt by a Party of a Mediation Request (whichever occurs sooner), or within such longer period as the Parties may agree to in writing, then the Dispute shall be submitted to binding arbitration in accordance with Section 7.3expert fees.