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Cobb Mediation, LLC's General Manager Barry Edwards' Article on Comprehensive Arbitration of Domestic Relations Cases in Georgia appears in the latest issue of the Georgia Bar Journal.
 We have just announced our Training Calendar for Summer/Fall 2008. We are offering core courses in general civil mediation as well as workshops on specialized subjects like co-parenting, special education, elder care. To participate, register as soon as possible. Group discounts available.
We are proud to introduce Nancy Grossman and Daryl Kidd as the newest members of our Panel of Neutrals. Ms. Grossman is an attorney who worked in Fulton County Superior Court. She specializes in mediating and arbitrating family law matters. Mr. Kidd, Founder of the Cobb County Bar Association's Family Law Section, brings 26 years of legal experience to his mediation and arbitration practice.
Jennifer Matte's Report on Opportunities in the ADR Field in Georgia is a great resource for dispute resolution professionals. Ms. Matte is a Vermont Law School graduate who worked at Cobb Mediation, LLC as part of her externship with Georgia State's Consortium for Negotiation and Conflict Resolution.
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These web sites offer more information about mediation:
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Cobb Mediation, LLC's Rules for Express Civil and Commercial Arbitration
These Rules for Expedited Civil and Commercial Arbitration provide a framework for the just and efficient resolution of complex civil and commercial disputes through binding arbitration in which the Parties agree to use these Rules. These Rules limit discovery and other pre-Hearing practice in order to resolve matters with limited time and expense. While preserving each Party’s right to argue the merits of one’s case, these Rules require all Arbitration participants to adhere to administrative and procedural rules which favor no party or argument.
I. GENERAL PROCEDURES
1.01 Applicable Laws Apply
These Rules are intended to complement applicable law, including the Georgia Arbitration Code, O.C.G.A. § 9-9-1 through 9-9-18. Any provision of these Rules that is inconsistent with applicable law shall not apply.
1.02 Amendments to Rules
These Rules may be amended. The Rules in effect at the Commencement of Arbitration shall apply to that arbitration.
1.03 Choice of Rules
If the Parties agree to follow other published rules for arbitration, such as American Arbitration Association (AAA) rules, those rules, which are not inconsistent with applicable law shall apply. The parties shall promptly notify Cobb Mediation of any such agreement and confirm such rules in writing.
1.04 Location of Conferences and Arbitration Hearing
All Conferences and the Arbitration Hearing shall be held at Cobb Mediation, 57 Whitlock Avenue, Marietta, Georgia 30064, unless all parties agree to conduct Conferences and the Arbitration Hearing at some other location.
1.05 Document Service and Filing Procedures
Where these Rules call for a document to be served, signed copies of said document, including attachments and exhibits, shall be simultaneously sent via First Class Mail or personal service to all other parties, Cobb Mediation, and the Arbitrator.
Time periods specified by these Rules or established by the Arbitrator start to run on the day that a notice is delivered. Should a deadline fall on a weekend or official holiday, the deadline shall be the next business day.
1.06 Communication with Arbitrator
No Party will communicate about any issue related to the Arbitration with the Arbitrator in the absence of any other party. Any necessary ex parte communication with the Arbitrator, whether before or after the Arbitration Hearing, will be conducted through the Case Coordinator assigned by Cobb Mediation.
1.07 Representation
Parties may be represented by counsel. A party shall serve Notice of the name, address, email address, telephone and fax numbers of counsel at least three days prior to the date set for the proceeding at which counsel is first to appear. When arbitration is commenced by counsel or when counsel replies for a party, such notice is deemed to have been given.
1.08 Changes in Representation
A Party shall give prompt written notice to the Case Coordinator and the other Parties of any change in its representation, including the name, address, telephone and fax numbers, and email address of the new representative. Such notice shall state that the written consent of the former representative, if any, and of the new representative, has been obtained and shall state the effective date of the new representation.
1.09 Scheduling
While arbitration is ongoing, parties and their counsel should notify Cobb Mediation of planned absences that make them unable to personally attend Conferences or the Arbitration Hearing. Cobb Mediation will attempt to accommodate schedules and personal preferences consistent with the prompt and efficient administration of the arbitration.
1.10 Extensions of Time
The Arbitrator may upon a showing of good cause or sua sponte, when necessary to facilitate the Arbitration, extend any deadlines established in these Rules.
1.11 Protective Orders Permitted
The Arbitrator may issue orders to protect the confidentiality of proprietary information, trade secrets, privileged or other sensitive information.
1.12 Confidentiality of Proceedings
The parties and the arbitrators shall treat the proceedings, any related discovery and the decisions of the Arbitrator, as confidential, except in connection with a judicial challenge to, or enforcement of, an award, and unless otherwise required by law. Subject to the discretion of the Arbitrator or agreement of the Parties, any person having a direct interest in the Arbitration may attend the Arbitration Hearing. The Arbitrator may exclude any non-Party from any part of a Hearing.
1.13 Security
Should the conduct of any Party, representative or witness for any party threaten, intimidate or otherwise give good cause, the Arbitration and/or Case Coordinator may engage security services, including off-duty police officers, for any or all arbitration proceedings called for under these Rules and assess the costs of security to the Party or Parties that give cause to engage security services and issue appropriate sanctions.
1.14 Waiver
If a Party becomes aware of a violation of or failure to comply with these Rules and fails promptly to object in writing, the objection will be deemed waived, unless the Arbitrator determines that waiver will cause substantial injustice or hardship.
1.15 Sanctions Authorized
Whenever a party fails to comply with these Rules in a manner deemed material by the Arbitrator, the Arbitrator shall fix a reasonable period of time for compliance and, if the party does not comply within a said period, the Arbitrator may impose a remedy it deems just. These sanctions may include, but are not limited to, assessment of costs, a negative inference, exclusion of certain evidence, or in extreme cases determining an issue or issues submitted to Arbitration adversely to the Party that has failed to comply.
1.16 Stenographic Records
Any party wishing a stenographic record of any proceeding shall make arrangements directly with a Georgia certified court reporter and shall notify the other party of such arrangements in advance. The requesting party or parties shall pay the cost of the record, but other parties may share the cost. If such transcript is agreed by the parties to be, or determined by the arbitrator to be, the official record of any Conference, it must be made available to the arbitrator and to the other party for inspection, at a time and place determined by the arbitrator.
1.17 Interpreters
Any party wishing an interpreter shall make all arrangements directly with the interpreter and shall assume the costs of such service. The interpreter will take the oath required by law.
1.18 Replacement of Arbitrator
If for any reason an appointed arbitrator should be unable to perform the duties of the office, the Parties may agree to a substitute arbitrator from Cobb Mediation’s Civil and Commercial Arbitration Panel. If the parties cannot agree on a substitute Arbitrator, Cobb Mediation will submit a list of three members of its Civil and Commercial Arbitration Panel from which each party shall have the right to strike one name within 14 days. Cobb Mediation will appoint the arbitrator from among the remaining name or names. If acceptable arbitrators are unable to act, or if, for any other reason, the appointment cannot be made from the submitted lists, Cobb Mediation shall have the power to make the appointment from among other members of its Civil and Commercial Arbitration Panel without submitting additional lists.
1.19 Disqualification of Arbitrator
No person shall serve as an arbitrator in any arbitration in which that person has any financial or personal interest. An arbitrator shall disclose any circumstances likely to create a presumption of bias which might disqualify that arbitrator as an impartial arbitrator.
1.20 Referral to Mediation
Either party may propose settlement negotiations at any time. The Arbitrator shall not serve as mediator but may give such assistance in settlement negotiations as the parties may request and the Arbitrator may deem appropriate.
1.21 Effect of Voluntary Settlement
If, at any stage of the Arbitration process, all Parties agree upon a settlement of the issues in dispute and request the Arbitrator to embody the agreement in a Consent Award, the Arbitrator shall comply with such request unless the Arbitrator believes the terms of the agreement are illegal or undermine the integrity of the Arbitration process. If the Arbitrator is concerned about the possible consequences of the proposed Consent Award, he or she shall inform the Parties of that concern and may request additional specific information from the Parties regarding the proposed Consent Award. The Arbitrator may refuse to enter the proposed Consent Award and may withdraw from the case.
1.22 High-Low Agreement Between Parties
The Parties may agree to a maximum high amount and a minimum low amount for the award in Arbitration. The terms of any "high-low" agreement between the Parties shall be confidential and not known by the Arbitrator before the Award is entered.
1.23 Release of Documents for Judicial Proceedings
Cobb Mediation shall, upon the written request of a party, furnish to such party, at its expense, certified copies of any papers in the Cobb Mediation's possession that may be required in judicial proceedings relating to the arbitration.
1.24 Exclusion of Liability, Hold Harmless
Neither Cobb Mediation nor any Arbitrator shall be liable in damages to any party for any act or omission in connection with any arbitration conducted under these Rules.
All Parties shall agree prior to any arbitration to hold the Arbitrator and Cobb Mediation harmless from any claim, litigation or dispute by any party arising from the arbitration directly or indirectly. Also, all parties shall agree to indemnify the Arbitrator and Cobb Mediation against all costs and expense, including attorney fees, incurred as a result, directly or indirectly from any claim litigation or dispute by any party arising from the arbitration. The Parties may not call the Arbitrator, the Case Coordinator or any other Cobb Mediation employee or agent as a witness or as an expert in any pending or subsequent litigation or other proceeding involving the Parties and relating to the dispute that is the subject of the Arbitration.
II. COMMENCEMENT OF ARBITRATION
2.01 Methods to Commence Arbitration
Parties may commence arbitration in any manner provided by the Georgia Arbitration Code, including written agreement by the parties or order of the appropriate Superior Court. See O.C.G.A. §9-9-3, §9-9-4 and §9-9-6.
2.02 Written Confirmation of Commencement of Arbitration
Upon commencement of arbitration, Cobb Mediation shall send all parties a Written Confirmation of the Commencement of Arbitration via First Class Mail. At this time, Cobb Mediation will assign an Arbitration File Number and Case Coordinator. For purposes of these Rules, the Arbitration commences as of the date of the Written Confirmation.
2.03 Parties Must Serve Notice of their Claims
Every party shall file serve written notice of all claims, remedies sought, and affirmative defenses it intends on making in arbitration. The Claimant shall file a Complaint within 10 days of the Commencement of Arbitration. The Respondent shall file an Answer (along with Respondent’s claims and affirmative defenses) within 10 days of the service of Claimant’s Complaint.
Pleadings should be simple, concise and direct. It is not necessary to plead facts.
If pleadings have served in a litigated case prior to the Commencement of Arbitration, the Parties may serve copies of such pleadings to satisfy the pleading requirement in their Arbitration.
No claim, remedy, or affirmative defense will be considered by the Arbitrator in the absence of prior notice to the other Parties, unless the other Parties consent to such consideration.
2.04 Selection of Arbitrator
The Arbitrator shall be agreed upon by all parties as soon as possible. In the event that the Parties cannot agree upon an Arbitrator within 14 days of the Commencement of Arbitration, an Arbitrator will be selected following the rule for Replacement of an Arbitrator.
If the parties agree, their arbitration proceedings may be conducted by a panel of three arbitrators. In this case, any reference to Arbitrator in these Rules shall mean a majority of the panel of three arbitrators. The Respondent and Claimant may each select one arbitrator and these two arbitrators shall select the third arbitrator who will serve as the Chief Arbitrator.
III. PRE-HEARING PROCEDURES
3.01 Arbitrator to Interpret Rules and Resolve Jurisdiction Challenges
Once appointed, the Arbitrator shall resolve disputes about the interpretation and applicability of these Rules and conduct of the Arbitration Hearing. The resolution of the issue by the Arbitrator shall be final.
Jurisdictional and arbitrability disputes, including disputes over the existence, validity, interpretation or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator. The Arbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter.
Subject to these Rules, the Arbitrator may conduct the arbitration in such manner as the Arbitrator shall deem appropriate.
3.02 Information Exchange Required
The Parties shall cooperate in good faith in the exchange of all non-privileged documents and information relevant to the dispute or claim. This exchange of information shall include copies of all documents in their possession or control on which they rely in support of their positions or which they intend to introduce as exhibits at the Arbitration Hearing, the names of all individuals with knowledge about the dispute or claim and the names of all experts who may be called upon to testify or whose report may be introduced at the Arbitration Hearing.
Documents that were not exchanged, or witnesses and experts that were not previously identified, within thirty (30) days of Commencement of Arbitration may not be considered by the Arbitrator at the Hearing, unless agreed by the Parties or upon a showing of good cause.
3.03 Third Party Procedure
Where a third party seeks to participate in an Arbitration already pending under these Rules or where a Party to an Arbitration under these Rules seeks to compel a third-party to participate in a pending Arbitration, the Arbitrator will decide on such request, taking into account all circumstances the Arbitrator deems relevant and applicable.
3.04 Withdrawal of Parties or Claims from Arbitration
No Party may terminate or withdraw from the Arbitration after its Commencement except by written agreement of all Parties to the Arbitration.
A Party that asserts a claim may unilaterally withdraw that claim without prejudice by serving written Notice of Withdrawal. However, the opposing Parties may, within fourteen (14) calendar days, request that the Arbitrator order that the withdrawal be with prejudice. If such a request is made, it shall be determined by the Arbitrator.
3.05 Consolidation of Arbitrations
At the request of any Party, the Arbitrator may consolidate Arbitrations if a Party files more than one Arbitration with Cobb Mediation, and the Arbitrator determines that the Arbitrations so filed have common issues of fact or law. When rendering its decision, the Arbitrator will take into account all circumstances, including the links between the cases and the progress already made in the existing Arbitrations. Unless applicable law provides otherwise, where the Arbitrator decides to consolidate a proceeding into a pending Arbitration, the Parties to the consolidated case or cases will be deemed to have waived their right to designate an Arbitrator.
3.06 The Pre-Hearing Conference
As soon as possible, but no less than thirty (30) days after the Commencement of Arbitration, the Arbitrator shall convene a Pre-Hearing Conference with the Parties. The purpose of the Pre-Hearing Conference is to resolve all matters preliminary to the Arbitration Hearing, including:
- Verifying that the required information exchanged has been completed;
- Estimating the time required at the hearing by each party for presentation of its case and for rebuttal;
- Identifying and/or deciding any preliminary legal matters, including requests for summary disposition of claims or particular issues;
- Identifying all issues to be decided at the Arbitration Hearing;
- The stipulation of facts and admissions by the Parties;
- Identifying all documentary and physical evidence to be tendered at the Arbitration Hearing;
- Identifying all witnesses, including experts, who may be called at the Arbitration Hearing;
- Determining whether witnesses will appear voluntarily or require subpoenas;
- Resolving disputes regarding the admissibility of evidence and expected witness testimony, including simplification of document authentication;
- The necessity for any on-site inspection by the Arbitrator;
- The desirability of bifurcation or other separation of the issues in the arbitration or special procedures for managing potentially difficult or protracted issues;
- The possibility of Parties engaging in settlement negotiations with the assistance of a mediator.
After the Pre-Hearing Conference, the Parties cannot add, withdrawal, amend or otherwise change their claims without good cause and permission of the Arbitrator.
The Arbitrator may require the Parties to provide a short description of the anticipated testimony of each such witness, an estimate of the length of the witness’s direct testimony, and a list of exhibits. In addition, the Arbitrator may require the Parties to exchange copies of all exhibits intended to be used at the Hearing.
The Arbitrator may require instruct the parties to file pre-hearing memoranda. The statements may be in the form of a letter. Rebuttal statements or other pre-Hearing written submissions may be permitted or required at the discretion of the Arbitrator.
The Arbitrator may also require the parties to submit proposed findings of fact, proposed findings of law and proposed awards.
3.07 Additional Conferences
The Arbitrator may convene, with or without the Parties request, additional Conferences, to discuss and resolve any matter related to the Arbitration in the interest of reaching a prompt, efficient and fair resolution.
3.08 Phone Conferences Permitted
Conferences may be conducted by telephone or similar means if all parties agree thereto.
IV. THE ARBITRATION HEARING
4.01 Date and Time of Hearing
The Arbitration Hearing shall be convened as soon as possible, but no less than fourteen (14) days after the Pre-Hearing Conference. Cobb Mediation shall notify each party of the Arbitration Hearing date and time in writing, personally or by registered, certified or statutory overnight delivery at least ten (10) calendar days in advance. The Arbitration Hearing shall continue day-to-day, so much as possible, as long as necessary.
The proceedings shall be conducted in an expeditious manner. The Arbitrator is empowered to impose time limits it considers reasonable on each phase of the proceeding, including without limitation the time allotted to each party for presentation of its case and for rebuttal.
4.02 Order of the Arbitration Hearing
The Arbitration Hearing shall be opened by the filing of the Oath of the Arbitrator, recording of the place, time and date of the Hearing and the presence of the Arbitrator, the Parties, and their representatives, if any.
The Arbitrator may, at the beginning the Hearing, ask for statements clarifying the issues involved. The Claimant shall then present its claims, proofs, and witnesses, who shall submit to questions or other examination. The Respondent shall then present its defenses, proofs, and witnesses, who shall submit to questions or other examination. The Arbitrator shall determine the order of proof by claimant and respondent, which will generally be similar to that of a court trial.
The Arbitrator has discretion to vary the order of the Arbitration Hearing if it is determined reasonable and appropriate to do so but shall afford full and equal opportunity to the parties for the presentation of any material or relevant proofs.
4.03 Rules of Evidence
Conformity to legal rules of evidence shall not be necessary. As much as possible, Parties should raise objections to the admission of evidence at the Arbitration Hearing at the Pre-Hearing Conference.
The Arbitrator shall determine the relevance and materiality of evidence offered and shall apply legally recognized evidentiary privileges. The Parties will not offer as evidence, and the Arbitrator shall neither admit into the record nor consider, prior settlement offers by the Parties or statements or recommendations made by a mediator or other person in connection with efforts to resolve the dispute being arbitrated. The Arbitrator may exclude evidence that is unduly repetitive, provided that all Parties are afforded the opportunity to present material and relevant evidence.
The arbitrator may receive and consider the evidence of witnesses by declaration or affidavit, but shall give it only such weight as the arbitrator deems it entitled to after consideration of any objection made to its admission.
4.04 Securing Witnesses and Documents for the Arbitration Hearing
At the written request of a Party, all other Parties shall produce for the Arbitration Hearing all specified witnesses in their employ or under their control without need of subpoena. If necessary, subpoenas shall issued and enforced as provided by O.C.G.A. §9-9-9. In the event a Party or a subpoenaed person objects to the production of a witness or other evidence, the Party or subpoenaed person may file an objection with the Arbitrator, who will promptly rule on the objection, weighing both the burden on the producing Party and witness and the need of the proponent for the witness or other evidence. The Arbitrator, in order to hear a third-party witness, or for the convenience of the Parties or the witness, may conduct the Hearing at any location unless the Arbitration agreement specifies a mandatory Hearing location.
4.05 Witness Testimony at Arbitration Hearing
The names and addresses of all witnesses shall be made a part of the record. The Arbitrator will require witnesses to testify under oath. The Arbitrator may examine witnesses. The Arbitrator may exclude witnesses from the Arbitration Hearings during the testimony of other witnesses. The expenses of witnesses shall be paid by the party producing such witnesses, unless the Parties agree otherwise.
4.06 Exhibits Used at Hearing
Exhibits, when offered by either party, may be received in evidence by the Arbitrator and shall be made a part of the transcript prepared by the stenographer. The Parties should pre-mark exhibits and should attempt to resolve any disputes regarding the admissibility of exhibits prior to the Hearing.
4.07 Arbitrator May Call for Evidence
The Arbitrator may require the parties to produce evidence in addition to that initially offered.
4.08 Closing of Hearing
The Arbitrator shall specifically inquire of all parties whether they have any further proofs to offer or witnesses to be heard. If satisfied that the record is complete, the Arbitration shall call for closing arguments by the respondent and claimant. At the conclusion of closing arguments, the Arbitrator shall declare the Hearing closed and a minute thereof shall be recorded. If briefs and/or documents are to be filed, the Hearing shall be declared closed as of the final date set by the arbitrator for the receipt of briefs and/or documents.
4.09 Post-Hearing Filing of Briefs and Documents
If the Arbitrator directs that briefs and/or documents are to be submitted to the Arbitrator after the Arbitration Hearing, they shall be served within the time designated by the Arbitrator.
4.10 Reopening of Hearing
At any time before the Award is rendered, the Arbitrator may, at his or her own direction or upon the application of a Party for good cause shown, re-open the Hearing.
4.11 Default Hearings
Unless the law provides to the contrary, the arbitration may proceed in the absence of any party or counsel who, after due notice, fails to be present or fails to obtain an adjournment. An award shall not be made solely on the default of a party. Prior to entering an award on default, the Arbitrator may require the non-defaulting party to produce evidence and legal argument in support of its contentions, which the Arbitrator may receive without the defaulting party’s presence or participation, but the Tribunal shall make every reasonable effort to obtain a response from a defaulting party before making an Award.
V. THE ARBITRATION AWARD
5.01 Form of Award
The Arbitrator shall make a standard award that states the disposition of each claim and the relief, if any, as to each claim. The Award shall be signed by the Arbitrator. The Arbitrator may also grant any remedy or relief that is just and equitable and within the scope of the issues in Arbitration. With respect to any temporary order issued by the Arbitrator at any Arbitration Conference, the Arbitrator may state in the Award whether it views the award as final, for purposes of any judicial proceedings in connection therewith. If the Arbitrator has made temporary or provisional orders, the Parties may request that the Arbitrator incorporate such rulings into the Arbitration Award.
5.02 Time of Arbitration Award
The Arbitration Award shall be made available to the Parties as soon as possible but no less than thirty (30) days from the closing of the Arbitration Hearing. Cobb Mediation shall deliver the Arbitration Award to the Parties so long as Cobb Mediation has received full payment for all invoices resulting from the Arbitration.
5.03 Reimbursement of Costs, Fees and Expenses
The Award of the Arbitrator may order one or more Parties to reimburse other Parties for the costs, fees and expenses associated with Arbitration. The Arbitrator’s assessment of costs, fees and expenses for or against any Party may create a private right of action among parties but does not alter any Parties’ liability to Cobb Mediation for costs, fees and expenses associated with Arbitration.
5.04 Correction of Computational and Typographical Errors
Any Party may serve a Request that the Arbitrator correct any computational, typographical or other similar errors in an Award in the manner outlined in the Georgia Arbitration Code, O.C.G.A. § 9-9-11. The Arbitrator may also at his or her own direction propose to correct such errors in an Award.
5.05 Enforcement of Award
The Arbitration Award is considered final, for purposes of judicial proceeding to enforce, modify or vacate the Award, twenty (20) days after service if no request for a correction is made, or as of the effective date of service of a corrected Award. Proceedings to enforce, confirm, modify or vacate an Award will be controlled by and conducted in conformity with applicable federal or state law, including the Georgia Arbitration Code, O.C.G.A. § 9-9-12 through 9-9-15.
5.06 Document Retention
Cobb Mediation will maintain a copy of all the documents the parties have served upon it during their Arbitration for one year after the award is issued. If the Parties wish to have any documents returned to them, they must advise Cobb Mediation in writing within 60 days of the conclusion of the Arbitration. If special arrangements are required regarding file maintenance or document retention, they must be agreed to in writing and Cobb Mediation reserves the right to impose an additional fee for such special arrangements.
VI. COSTS & FEES
6.01 Administrative & Case Management Fees
The Administrative and Case Managements Fees for the Arbitration of Civil and Commercial matters under these Rules are:
Filing Fee = $99 per party
Cobb Mediation may also impose reasonable fees for late cancellation of, late rescheduling of and no shows at arbitration proceedings.
6.02 Arbitrator Compensation
The Arbitrator shall be compensated at an hourly rate established at the time of his or her appointment. Compensation shall be for time spent in connection with the arbitration proceeding, including time spent reviewing the record.
6.03 Other Expenses
All other expenses of the arbitration, including required traveling (other than to Cobb Mediation) and other expenses of the Arbitrator and the Case Coordinator, and the expenses of any witness and the cost of any proof produced at the direct request of the Arbitrator, shall be borne equally by the parties, unless they agree otherwise in writing.
6.04 Periodic Billing
Cobb Mediation will bill Parties for fees they have incurred at the Commencement of Arbitration and every 30 days thereafter. Fees will be split equally among all parties unless otherwise agreed in writing. If, at any time, any Party fails to promptly pay fees or expenses in full, Cobb Mediation may order the suspension or termination of the Arbitration proceedings. Cobb Mediation may so inform the Parties in order that one of them may advance the required payment. An administrative suspension shall toll any other time limits contained in these Rules.
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