Note: as mentioned in the text, we prefer using a general mediation clause in pre-dispute agreements. This gives maximum flexibility to the mediator to help design the appropriate settlement process.
Model Guided Choice Clause
The following clause can be used as the basis for a mediation agreement or to amend an existing pre-dispute agreement to mediate. The clause is neutral as to whether agency administration is used or which agency. It evidences a commitment by the parties to begin the mediation process as soon as practical. It also shows the parties’ commitment to continue cooperating and exchanging information notwithstanding impasse. While the terms show a good faith commitment to the mediation process, any party is free to terminate the mediation for any reason and resume their litigation or arbitration.
- If a dispute arises out of or relates to this contract, or the breach thereof, the parties agree to try in good faith to settle the dispute as early as possible by using a mediator, experienced in the subject matter of the dispute, to:
- Diagnose the legal, technical and human factors that have caused impasse to settlement; and
- Design for the parties’ approval, a process to overcome obstacles to settlement whenever they occur.
- In the event of any impasse, the parties shall cooperate in a good faith exchange of information, facilitated by the mediator, which information would be discoverable under applicable rules of law, and that may be useful in causing re-evaluation of settlement positions. This information will be developed within the confidentiality requirements of the mediation process.
- Without terminating the mediation process, the parties also may agree to (1) use an arbitrator or judge, having jurisdiction, to issue orders resolving substantive or procedural issues; and/or (2) customize an arbitration process, pursuant to an existing arbitration agreement or by submittal to arbitration to achieve fair resolution quickly and at minimal cost. The mediator shall facilitate those discussions, but shall not serve as an arbitrator. [Alterative: The mediator shall not serve as an arbitrator. However, the parties may agree that the mediator attend the arbitration hearing but shall not communicate with the arbitrators.]
- Any party may give seven (7) days notice of termination, by fax or email, of the mediation and proceed to litigation or arbitration as otherwise applicable. Unless the parties agree otherwise, all other existing agreements for dispute resolution shall remain in effect