I don’t mean to argue against the undeniable wisdom of inserting a dispute resolution clause in a commercial contract at the drafting stage.
Goodness knows, I spent enough time up on the 20th floor of my old law firm trying to persuade my commercial partners to include my own well crafted D/R clause in their boilerplate.
I mean, what’s not to like… it makes absolute sense to agree a dispute resolution framework before a dispute arises.
But there is a BUT.
Most clauses, and there are hundreds of versions, are drafted on the premise that the dispute should get to mediation sooner rather than later. Definitely before any arbitration/court proceedings are started.
Some are multi layered; 1) first negotiate, 2) move on to mediate, 3) then arbitrate or litigate as a last resort.
But, these clauses are pushing people through the doors of the mediation room too soon… before the dispute is mature, before the raw edges have been knocked off.
They come to the table without adequately defining to themselves, and each other, what the dispute is all about – upon what it is they agree and disagree, without adequate document exchange and to be honest without adequately spending time wallowing in the conflict and all that it brings with it.
Like a ripe cheese, these things take time.
For more see The Layered Dispute Resolution Clause – from Boilerplate to Business Opportunity by my good friend Robert Dobbins from Laguna Beach, California
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