Alternative Dispute Resolution
THE PARTIES TO THIS AGREEMENT HEREBY EXPRESS THAT, EXCEPT AS SET FORTH BELOW, ALL DISPUTES, CONTROVERSIES OR CLAIMS OF ANY KIND AND NATURE BETWEEN THE PARTIES HERETO, ARISING OUT OF OR IN ANY WAY RELATED TO THIS EMPLOYMENT AGREEMENT, ITS INTERPRETATION, PERFORMANCE OR BREACH, ORE THE EMPLOYMENT RELATIONSHIP, SHALL BE RESOLVED EXCLUSIVELY BY THE ALTERNATIVE DISPUTE RESOLUTION (“ADR”) PROVISIONS SET FORTH BELOW:
A. Negotiation — The parties hereto shall first engage in a good faith effort to negotiate any such controversy or claim by communications between them. The negotiations may be oral or written. To the extent that they are
oral, they should be confirmed in writing.
B. Should the above-stated negotiations be unsuccessful, the parties shall engage in mediation pursuant to the American Arbitration Association Commercial Mediation Rules, or such other mediation rule as the parties may
otherwise agree to choose.
C. Should the above-stated mediation be unsuccessful, the parties agree to arbitrate any such controversy or claim with the express understanding that this Agreement affects and is affected by interstate commerce and is governed by the Federal Arbitration Act. The arbitration shall be conducted pursuant to the Arbitration Rules of the American Arbitration Association (the “Arbitration Rules”) or such other arbitration rules as the parties may otherwise agree to choose.
To the extent that a court of competent jurisdiction should determine that the provisions of the Federal Arbitration Act are not applicable to this Agreement, the parties hereto nevertheless agree to arbitrate under the provisions of Alabama law, regarding the measure or amount of damages to which either of the parties may be entitled. Such arbitration shall be conducted pursuant to the Arbitration Rules.
D. The Employee shall pay no more than $150 in arbitration costs. However, the parties agree that the arbitrator may as part of his final decree reapportion the fees, including attorney’s fees, and costs between the parties as allowed by applicable law, but where applicable law does not so provide then Cook’s will be awarded its reason able attorney’s fees, should it prevail. Notwithstanding any other provision of this Article to the contrary, in the event a party may desire to seek interim relief, whether affirmative or prohibitive, in the form of a stay or motion to compel arbitration, a temporary restraining order, preliminary injunction or other interim equitable relief concerning any such dispute, contro¬versy or claim, including without limitation, declaratory relief, either before beginning or at any point in the ADR procedures, such party may initiate the appropriate litigation to obtain such relief (“Equitable Litigation”). Nothing herein shall be construed to suspend or terminate the obligation of both parties promptly to proceed with the ADR procedures concerning the subject of such Equitable Litigation while such Equitable Litigation and any appeal therefrom is pending. The parties intend that this ADR Agreement shall encompass and embody the broadest range of matters that may be arbitrated under federal law. The parties further agree that any question as to the scope of this ADR Agreement shall, to the extent permitted by law, be determined by the arbitrator (including, without limitation, issues of unfairness, capacity, waiver, unconscionability and so forth).
E. The parties to this Agreement agree that each may bring claims against the other only in its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding unless dictated otherwise by law. Further, unless the parties agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. This Agreement does not waive Employee’s rights under the National Labor Relations Act (NLRA) to conceitedly pursue a covered claim or challenge the validity of this ADR Agreement upon such grounds that may exist in law or in equity. Employees will not be retaliated against for engaging in activities protected by the NLRA.
F. The parties agree that any claim or lawsuit relating to this Agreement or the employment relationship or otherwise must be filed no more than six (6) months from the date of the employment action that is the subject of this lawsuit. The parties waive any statute of limitations to the contrary.
THE PARTIES UNDERSTAND AND AGREE (I) THAT EACH OF THEM IS WAIVING RIGHTS TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION; (II) THAT PRE-ARBITRATION DISCOVERY IN ARBITRATION PROCEEDINGS IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS; (III) THAT THE ARBITRATOR’S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL REASONING; AND (IV) EITHER PARTY’S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY THE ARBITRATOR, IS STRICTLY LIMITED. (V) THE PARTIES HAVE AGREED TO A SDC (6) MONTH PERIOD TO FILE ANY CLAIMS AGAINST THE OTHER.
THE VENUE FOR MEDIATION AND/OR ARBITRATION UNDER THIS ARTICLE SHALL BE IN THE CITY OF DECATUR, STATE OF ALABAMA.