What’s the guiding principle behind drafting dispute management clauses?
Risk management. As corporations around the world seek alternatives to American litigation, many have voiced dissatisfaction with the quality of the dispute resolution processes with which they are presented. Mediation is not final, the complaint goes: It is treading water; it is a costly and time-consuming added layer of procedure; it is unenforceable; it is “soft;” it is annoying; it is ineffective. Arbitration is out of control; arbitrators are unaccountable and prejudiced; outcomes are incorrect and too often seem compromises; the process is as expensive and complex as litigation but without the possibility of appeal; arbitration administrative bodies are too expensive and unsophisticated. Yet few of these disgruntled users of ADR processes look to themselves, or their professional advisors, as the cause of their own dissatisfaction. Arbitration is always a creature of contract, and mediation almost always is. ADR processes are meant to be party-directed and party controlled. Might
