Mediation and Arbitration Agreement
Applicability of Agreement
This document is a part of each and every transaction between Bank and Customer relating to the account being applied for through the internet. This document is valid from the date of the application until this agreement is terminated. In the event of a conflict between the provisions of this document and other documents executed in connection with the aforementioned account between the bank and the customer, the provisions of this document shall control.
The consideration for this agreement is the consideration given and received in each transaction between the bank and the customer pursuant to this account and the mutual benefits to be derived by Bank and Customer from the convenient, expeditious, economical, and private procedure for resolving disputes between them concerning any such transaction.
- If a controversy or claim arises out of or relates to any agreement or transaction between Bank and Customer, either party may request before or after institution of legal proceedings or arbitration that it be resolved by good faith mediation, administered by Southern Arbitration and Mediation ("Southern") under its Mediation Rules. The parties agree that the request for mediation shall be in writing no later than 10 days after the written assertion of a claim. The mediator shall be chosen no later than 15 days after the request for mediation, and the mediation process shall be concluded no later than 30 days after the selection of the mediator.
- If there is no request for mediation within the time prescribed in paragraph (a), or if there is mediation and the controversy or claim is not resolved through mediation or otherwise in the period prescribed in paragraph (a), the controversy or claim shall at the request of any party, made before or after institution of legal proceedings, be determined by binding arbitration. The agreements and transactions between Bank and Customer involve interstate commerce, and the arbitration is subject to and shall be conducted in accordance with the United States Arbitration Act notwithstanding any choice of law or provision in this Agreement, and under the Arbitration Rules of Southern Arbitration and Mediation ("Southern"). The arbitrator shall have authority to award damages and grant such other relief he deems appropriate. The arbitrator shall give effect to statutes of limitation in determining any claim. Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator. Judgment upon the arbitration award may be entered in any court having jurisdiction. The arbitrator shall be chosen no later than 15 days after filing of the claim with Southern. The arbitration procedures shall be concluded, and the arbitrator's award issued, no later than 180 days after selection of the arbitrator.
- Provisional remedies, self-help and foreclosure. The institution and maintenance of an action for judicial relief or pursuit of a provisional and ancillary remedy shall not constitute a waiver of the right of any party, including the plaintiff, to submit the controversy or claim to mediation or arbitration if any other party contests such action for judicial relief. No provision of paragraphs (a) or (b) shall limit the right of any party this agreement to exercise self-help remedies such as setoff, to foreclose against or sell any real or personal property, collateral or security, or obtaining provisional or ancillary remedies from a court of competent jurisdiction before, after, or during dependency of any arbitration or other proceeding. The exercise of a remedy does not waive the right of either party to resort to mediation or arbitration.
- In the event of a conflict between the provisions of this document and the Mediation or Arbitration Rules of Southern, the provisions of this Agreement shall control.
Administrative Fees and Expenses
- The administrative fees charged by Southern for mediation shall be advanced and paid by the party requesting the mediation. The fees of the mediator and other expenses jointly incurred by the parties shall be shared equally between bank and customer.
- The administrative fees paid to Southern for arbitration shall be advanced by the party asserting the claim. In all instances, the Arbitrator shall have the authority to allocate responsibility for the administrative fees between the parties. The parties shall equally share the fees of the Arbitrator and other jointly incurred expenses.
Selection of Mediators and Arbitrators
- A single mediator acceptable to Bank and Customer shall be selected from the panel of mediators submitted by Southern. If bank and customer are unable to agree upon the mediator, the mediator shall be selected by Southern.
- On claims of $100,000 or less, including counter-claims, an arbitrator shall be selected from a panel of 5 arbitrators submitted by Southern, by bank and customer either agreeing on the arbitrator or striking persons from the panel until one person is left, that person being the arbitrator. On claims in excess of $100,000, including counter-claims, 3 arbitrators shall be selected from a panel of 15 arbitrators submitted by Southern, by bank and customer either agreeing on the Arbitrators or striking persons from the panel until 3 persons are left, those persons being the Arbitrators. The determination of who shall make the first strike and the resolution of any disputes concerning selection, including, if necessary, the appointment of the arbitrators, shall be done by Southern.
- There shall be no discovery in connection with mediation other than any voluntary exchange of information and documents agreed to by the parties.
- The arbitrator shall have the power to authorize reasonable discovery and to issue any necessary orders and subpoenas. Bank and customer agree that all discovery shall be limited and expedited to the maximum extent practical and the arbitrator is specifically requested and encouraged to minimize discovery and its cost to the maximum extent practicable. In no event shall the arbitrator allow discovery which would result in this matter not being concluded and an award issued in the time specified herein.
The mediation and arbitration sessions shall be held at a location mutually acceptable to bank and customer. If bank and customer cannot agree on the location, the location shall be selected by Southern.
To the extent permitted by applicable law, all proceedings pursuant to or in connection with this Agreement shall be kept strictly confidential, except for disclosures of information required in the ordinary course of business of bank and customer or by applicable law or regulation. This provision shall not exempt from discovery or use in any other or future action any evidence otherwise discoverable merely because it is presented in, referred to, or discussed in the course of, or in connection with, proceedings pursuant to this agreement.
If any provisions of this Agreement is found to be unenforceable, the remaining provisions shall be enforced to the extent permitted by applicable law and in lieu of any such unenforceable provision, there shall be substituted in its place a provision as similar in substance and effect as is capable of being enforced.
Successors and Assigns
This Agreement shall be binding upon, and shall ensure to the benefit of, the parties and their respective successors and assigns.
This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes all prior discussions, arrangements, negotiations, and other communications, if any, on dispute resolution. The parties agree that this Agreement may not be amended or modified in any respect except in writing.