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Joe Markowitz /
I am as big a proponent of mediation as anyone, and serve regularly as a mediator, but as an attorney advising a party drawing up a contract, I am reluctant to suggest mandatory arbitration or even mediation clauses. For one reason, I believe those processes work better if they are voluntary, not forced on the parties in advance. For another reason, I generally counsel parties not to give up important rights they retain in court. Just as in international diplomacy, you do not want to dismantle your army just because you believe in trying peace negotiations first, in civil disputes, you do not want to waive your right to jury trial just because you believe in ADR. Lawsuits have important advantages and legal protections for the parties that they should not waive lightly. Number one, the right to jury trial, which may provide tremendous leverage in resolving a dispute, if nothing else. Number two, lower initial costs: filing fees in court are much lower than arbitration for example. Number three, the ability to get the other side's attention in a dramatic and aggressive way. Nothing tells people you are unhappy with their conduct like suing them. And number four, all of the legal protections of the trial and appellate system, which provide much more assurance that your dispute is going to be resolved according to the law than in arbitration or mediation. So it's not just that business people haven't thought enough about ADR provisions when they draw up contracts. It is also that they should not lightly give up important advantages that exist in the court system.
Michael /
In certain circumstances, such as long term business relationships, it would make sense to treat mediation as an evolving process owned by both parties. Instead of a simple clause in a contract, the creation of the dispute resolution process could become an ongoing method of improving communications.