Philip A. Robbins is a Partner with Robbins & Green in Phoenix, AZ. Mr. Robbins' area of expertise is arbitration and mediation (domestic and international). He is a member of the Board of Governors, National Law Center for Inter - American Free Trade, Tucson, Arizona and U.S. Delegate to NAFTA 2022 Advisory Committee on Private Commercial Disputes for Free - Trade Commission.
This paper assumes that the parties to a contract have agreed to provide for mediation as a part of the dispute resolution process. It will deal with questions of what should be included in the contract's mediation clause and will provide some recommended or model forms for such a clause.
I. Drafting the Mediation Clause
Subjects to be considered for inclusion include the following:
1. Is mediation to be integrated with other forms of ADR, before, during or after mediation? In this regard, the contract may provide for direct negotiation prior to mediation. It may also provide for arbitration or other forms of ADR following an unsuccessful mediation.
2. Is use of mediation mandatory? This may seem to be a conceptual contradiction, but it may overcome the reluctance of the parties to "blink first" by requesting mediation, which the parties may fear will be perceived as a showing of weakness or lack of confidence.
3. A process for selecting the mediator should be included. This could involve designation of a specific individual, or an institution, or provide for selection from a panel of approved mediators, or could simply create a process for selection when the need arises.
4. The scope of the controversy subject to mediation may be defined, i.e., "any dispute, controversy or claim arising out of or related to this contract," although the parties can define, narrow, or broaden the subject of a mediation after the need arises.