Mediation Agreement - DOC by philipargy

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ArgyStar.com Mediation Agreement
Date: Parties:
2010 ??? Pty Ltd [ABN ?? ??? ??? ???] (“Party1”) ??? Pty Ltd [ABN ????????] (“Party2”) PHILIP NATHAN ARGY (the “Mediator”) for and on behalf of himself and Jeapna Pty Ltd [ABN 26 003 735 591] trading as ArgyStar.com (“ArgyStar”) A. B. A dispute has arisen between the Parties (the “Dispute”) as briefly described in Schedule 1. The Parties have requested ArgyStar to appoint the Mediator, and the Mediator and ArgyStar have agreed, on the terms and conditions of this agreement, to endeavour to assist the Parties to resolve the Dispute.

Background:

Agreement:
The Mediation 1 The “Mediation” includes all steps taken to attempt to resolve the Dispute by negotiation or mediation, whether prior or subsequent to the execution of this agreement. A “Party” means Party1 and/or Party2 and “Parties” means both of them. Appointment of the Mediator and Fees 2 ArgyStar appoints the Mediator, and the Mediator accepts the appointment, to mediate the Dispute in accordance with the terms of this agreement. Irrespective of the outcome of the Mediation, the Parties agree to be jointly and severally liable to ArgyStar for its fees and disbursements in accordance with Schedule 2. Parties’ Costs 3 Each Party agrees to bear its own costs of the Mediation. Functions of the Mediator 4 The Mediator’s role is to assist the Parties by suggesting and exploring options which would be acceptable to the Parties and form a basis for the resolution of the Dispute in the form of a settlement agreement between them. 5 The Mediator’s role is not to make decisions for a Party nor to force an outcome on any Party, nor to draft a settlement agreement reflecting the outcome of the Mediation, and the Mediator has no interest in the outcome of the Mediation other than a desire to resolve the Dispute to the Parties’ satisfaction.

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Unless the Parties agree in writing to the contrary, the Mediator agrees not to solicit expert opinion as to any aspect of the Dispute. Any such advice or opinion is to be obtained only from a person or persons agreed by the Parties.

Conflicts of interest 7 The Mediator confirms having disclosed to the Parties any prior dealings that he has had with either of them, and any interest he has in the Dispute, to the best of his recollection. 8 Should the Mediator become aware of any circumstances that might reasonably be considered to affect the Mediator’s capacity to act impartially, the Parties are to be informed of those circumstances as soon as practicable. The Mediator will thereafter continue to conduct the Mediation unless a Party gives notice under clause 20.

Co-operation 9 Each Party undertakes to participate in the Mediation in good faith and to extend courtesy to each other participant and to the Mediator. 10 Each Party agrees to comply with any reasonable request or direction made by the Mediator.

Authority & representation 11 If a Party is a natural person, the Party must attend the Mediation and any preliminary conference. If a Party is not a natural person, it must be represented during the Mediation and any preliminary conference by a director or principal with full authority to settle the Dispute during the Mediation. 12 Each Party may also appoint one or more persons including legally qualified persons to assist and advise the Party in the Mediation and to perform such role or roles in the Mediation as the Party requires and as the Mediator permits. The parties acknowledge the Mediator’s preference for lawyers not to play the main role in discussions.

Conduct of the Mediation 13 The Mediation, including all preliminary steps, are to be conducted in such manner as the Mediator considers appropriate having regard to the sophistication and number of the Parties and the nature of the Dispute. 14 Without limiting the Mediator’s powers under Clause 13, the Mediator may give directions as to: 14.1 14.2 14.3 14.4 14.5 the exchange of written outlines of the views of the Parties and the issues raised by the Dispute; an exchange of experts’ reports, any meeting of experts and the preparation of a joint experts’ report; service on the Mediator and the other Party prior to the Mediation conference of any background material, reports, outlines or other material; preliminary conferences prior to the Mediation; matters to be attended to by the Parties including venue hire, catering and other logistical support for the Mediation;

3 14.6 the payment to ArgyStar by way of advance of $3,300 being the Mediator’s estimated fee for the conduct of a one day Mediation conference.

Communication between the Mediator and a Party 15 The Mediator may as frequently as the Mediator deems appropriate meet or otherwise communicate with the Parties together, or with a Party alone or with its advisors, or, where a Party is an entity or is represented by more than one individual, with any one or more individual representatives of a Party. The Mediator need not disclose to a Party that the Mediator has met or communicated privately with another Party or its advisors, or any individual representative of that or any other Party. 16 Any oral or written disclosure to the Mediator by a Party in confidence will not be disclosed by the Mediator to any other person during the Mediation unless the Party from whom that information was received consents.

Confidential information 17 Each Party agrees: 17.1 17.2 to keep confidential all confidential information disclosed during the Mediation (“Confidential Information”); not to disclose Confidential Information to any other person unless compelled by law to do so, or with the consent of the Party that disclosed the Confidential Information in question; not to make use of Confidential Information for any purpose other than the Mediation.

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Privilege 18 Subject to Clause 17, in any arbitral or judicial proceedings the following must at all times be kept confidential and is to be treated by each Party as if it were protected by legal professional privilege. Neither Party may disclose or rely upon them or issue or cause to be issued any subpoena to give evidence or to produce documents concerning them, nor seek to join the Mediator in any proceedings: 18.1 18.2 18.3 18.4 any settlement proposal, whether made by a Party or the Mediator, including any version prior to the executed version of a settlement agreement; the willingness of a Party to consider any such proposal; any admission or concession made by a Party at the Mediation; any statement or document made by the Mediator.

Subsequent proceedings 19 The Mediator will not accept appointment as an advocate in or to provide advice to a Party to any arbitral or judicial proceeding relating to the Dispute or any of them. No Party will take action to cause the Mediator to breach this clause. Termination 20 A Party may at any time terminate the Mediation by giving written or oral notice to each other Party and to the Mediator.

4 21 If, after consultation with the Parties, the Mediator forms the view that the Mediator will be unable to assist the Parties to achieve resolution of any part of the Dispute, the Mediator may terminate the engagement as Mediator by giving notice to the Parties of that termination. Upon receipt of written notice from the Mediator terminating the engagement of the Mediator, the Parties may appoint a new mediator or may request ArgyStar to do so. Apart from termination by the Mediator, in the absence of notice by a Party terminating the Mediation, the Mediation will be terminated only by execution of a written settlement agreement in respect of the Dispute. The settlement agreement is to be drawn up and executed as soon as practicable following agreement being reached between the Parties.

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Enforcement 23 Any Party is at liberty to enforce the terms of a settlement agreement, provided that in any enforcement proceedings, neither Party may seek to adduce evidence of and incidental to the Mediation, including evidence from the Mediator and any other person engaged in the Mediation. Exclusion of liability and indemnity 24 Except in the case of fraud by the Mediator, neither the Mediator nor ArgyStar is liable to a Party for any act or omission (including any negligent act or omission) in the performance or purported performance of, or alleged failure to perform, any obligation under this agreement or otherwise. 25 The Parties jointly and severally indemnify the Mediator and ArgyStar against all claims arising out of or in any way referable to any act or omission by the Mediator or ArgyStar in the performance or purported performance of obligations under this agreement, except in the case of fraud by the Mediator. No statements or comments, whether written or oral, made or used by the Parties or their representatives or the Mediator during the Mediation may be tendered in evidence or relied upon to found or maintain any action for defamation, libel, slander or any related complaint against a Party, the Mediator or ArgyStar and this agreement may be pleaded in bar to any such action.

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National Mediation Standards 27 Party1 and Party2 each acknowledge having read and understood the National Mediation Practice Standard which can be viewed at http://www.leadr.com.au/documents/Practice%20standards.pdf and the National Mediation Approval Standard, which can be read at: http://www.leadr.com.au/documents/Approval%20standards.pdf

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Schedule 1
The dispute relates to [insert description of dispute]

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Schedule 2
The fees and disbursements payable to ArgyStar for the Mediator’s preparing and conducting the Mediation are as follows: Fees $330 including GST per hour up to a maximum of $3,300 on any calendar day during which the Mediator does not chair a mediation or preliminary conference of the Parties of more than two hours’ duration; or $3,300 including GST on any calendar day during which the Mediator chairs or otherwise conducts a mediation or conference of the Parties of more than two hours’ duration, provided that if a mediation conference extends for more than 8 hours on any calendar day ArgyStar is entitled to $770 including GST for every hour or part thereof by which the mediation conference extends beyond 8 hours. Disbursements to be re-imbursed at cost Travel and accommodation as required, at Business Class standards. Other reasonably incurred out-of-pocket expenses Service fee Where ArgyStar at the request of the Parties or the Mediator attends to any of the matters the subject of a direction under clause 14.5, the Parties must pay ArgyStar a service fee of 20% of the amounts paid by ArgyStar in addition to re-imbursing ArgyStar for any expenses incurred in attending to those matters. Interest payable on overdue amounts Where any amount due to ArgyStar is not paid within 10 working days of demand therefor being made, the amounts outstanding will bear interest at a rate of 12.5% per annum from the date that they were due until the date that they are paid in full. Due Date for payment All amounts payable to ArgyStar are to be paid in full and without deduction by bank transfer in accordance with the instructions endorsed on ArgyStar’s tax invoice, and within 10 working days of the issue of that tax invoice. Unless otherwise agreed, or where the Mediation is convened on short notice, payment of $3,300 for the first day of a Mediation is to be made not less than two business days prior to the Mediation conference.

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The Parties, ArgyStar and the Mediator have executed this document as an agreement.

SIGNED by in the presence of:

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SIGNED by the presence of:

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................................................................... Signature of witness

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8 SIGNED by the presence of: in ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

................................................................... Signature of witness

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SIGNED for and on behalf of himself and ArgyStar.com by PHILIP NATHAN ARGY in the presence of:

................................................................... Signature of witness

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................................................................... Signature of PHILIP NATHAN ARGY

Dated

2009

ArgyStar.com Mediation Agreement

(“Party”) and (“Party”) and (“Party”) and Philip Nathan Argy (“Mediator”) and ArgyStar.com (“ArgyStar”)

ArgyStar.com
Technology Dispute Centre Suite 707 155 King Street Sydney NSW Australia 2000 T +61 4 2822 4123 F +61 2 9719 8521 Ref: PNA


								
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