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Will The Next Generation Of Dispute Resolution Clause Drafting Include Model Arb-Med Clauses?

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Chapter Summary

We are aware that many pre-dispute resolution clauses are drafted under less than ideal circumstances in terms of time, access to business representatives, etc. There is a small body of case law that addresses some issues dealing with parties' agreement to use mediation after the commencement of an arbitration that can provide guidance when faced with a request to draft an arb-med clause. As a general matter, the cases stress the importance of informed consent on the part of the parties agreeing to use an arb-med process. There is a variety of possible combinations when parties decide to use both mediation and arbitration to resolve a dispute. The classic combination is a multistep process - a mediation phase followed by arbitration - a process referred to as "med-arb". The process arb-med is different in that some portion of arbitration phase technically begins before the mediation. This chapter provides a few guidelines for the draftsperson.

Keywords: arb-med clause; arbitration; dispute resolution clause; drafting; med-arb; mediation

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