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2. The dispute resolution clause is not the most popular aspect
of a commercial transaction.
Nobody wants to raise the issue because we probably wont need it
anyway.
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3. As a result, Alternative Dispute Resolution (ADR) clauses often
do not get the drafting attention they deserve.
A poorly drafted ADR clause can seriously undermine resolution of a
dispute.
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4. The time to raise the issue is when everyone is happy going into
the deal not looking for a way out!
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5. www.mediate.ca
6. What is ADR?
Alternative Dispute Resolution (ADR) is a term used to describe a
number of procedures outside the traditional litigation
process.
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7. www.mediate.ca
8. 6
Role of ADR
ADR is about options for resolving disputes as an alternative to
traditional litigation
Consensus-based approaches to dispute resolution
9. First consideration: do you really want an ADR clause?
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10. Without an ADR clause in the contract, the default is go to
court.
90% + of court cases settle without trial so it is worth looking at
ADR as a speedier, less costly way of dealing with disputes.
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11. An ADR clause can contain any of the following processes as an
alternative or precursor to litigation negotiation,mediation and
arbitration.
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12. Negotiation
Negotiation will result in resolution if the parties agree on a
settlement.
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13. Mediation
Mediation involves a third party assisting the parties negotiations
and will only result in resolution if the parties agree on a
settlement.
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14. Arbitration
Arbitration involves an adversarial process that results in a third
party issuing a binding decision on the dispute.
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15. Commercial agreements often include ADR clauses with lengthy
and complex steps that must be followed before a dispute can be
litigated or arbitrated.
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16. Before you put an ADR clause into a contract, think carefully
about whether it is really necessary and, then consider the
following drafting tips.
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17. Short and Simple
Drafting tip 1 keep any multi-tier DR clause short and
simple.
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18. A key issue with multi-tier clauses is the length of time it
can take to work through the various steps involved.
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19. Make sure the various steps are kept to an absolute minimum and
that fixed and short time limits are set. The process should be
completed in days or weeks, not months or years
(litigation!).
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20. Do not use Vague Words
Drafting tip 2 do notuse reasonable negotiations, good faith
negotiations or similar undefined language.
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21. What does this mean?
In the event of a dispute, the parties shall use all reasonable
efforts to amicably resolve the dispute through good faith
negotiations. If the dispute is not so resolved then..
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22. What does it require the parties actually do?
By what standard is compliance to be measured?
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23. How long must the negotiations go on for?
Is it enforceable?
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24. ADR clauses often contain such provisions which often add
nothing to the process and can cause serious problems such as being
used to delay resolution.
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25. Rather than including vague and uncertain language, give the
parties something concrete to do.
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26. Mediation
Drafting tip 3 - Get the mediation clause right.
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27. A mediation clause must be sufficiently certain. It must
address the mediation process and in particular, how the mediator
is to be appointed.
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28. The clause should deal with what happens if the parties cannot
agree on a mediator.
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29. You can cover this by specifying that the mediator is to be
appointed by a named institution, such as the ADR Institute of
Ontario, Inc (ADRIO).
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30. Arbitration
Drafting tip 4 Keep the arbitration clause short and simple and be
sure to address the basics.
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31. An arbitration clause must address:
that the dispute is to be referred to arbitration.
the number of arbitrators one or three.
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32. A process for appointing the arbitrator, including what happens
if the parties fail cannot agree on the arbitrator.
The Arbitration Act 1991 provides is that the Superior Court of
Justice can appoint the arbitrator.
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33. It will be quicker and cheaper thana court application to have
an institution, such as ADRIO act as the default appointing
authority.
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34. Incorporate the arbitration rules by reference.
Specify the place of arbitration.This is crucial in an
international transaction.
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35. Practical tip If an international transaction, make sure to
specify the language of the arbitration because otherwise who pays
to translate documents?
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36. Arbitration Clause
An arbitration clause similar to this is really all you need for
most situations:
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37. Any dispute, difference or claim arising out of or in
connection with this agreement, or the subject matter of this
agreement, will be referred to and finally resolved by arbitration
in accordance with the Rules of the ADR Institute of Canada, Inc.
(Rules).
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38. The tribunal will consist of [one or three arbitrators]
appointed in accordance with the Rules. The place of arbitration
will be Toronto. The language of the arbitration will be
English.
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39. Arbitration Act, 1991
If arbitration takes place in Ontario the parties should also
consider contracting out of or into various optional provisions
contained in the Act, for example, appeals on points of law, use of
med-arb etc.
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40. Dispute resolution in international transactions is a complex
area and you should get expert advice on drafting ADR clauses for
such transactions.
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41. Example of Multi Step Clause
This is an example of a simple multistep dispute resolution clause,
which includes negotiation, mediation and arbitration.
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42.
http://www.oba.org/En/InfoTech/newsletter_en/PrintHTML.aspx?DocId=34849#Article_1
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43. Use the previous clause at your own risk!
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44. Conclusion
Consider the issues raised in this presentation and adapt it as
needed to meet your specific dispute resolution goals.
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45. www.mediate.ca
46. QUESTIONS?
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47. References
National Mediation Rules with Model Clause and Agreement:
http://www.adrcanada.ca/rules/mediation.cfm
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48. National Arbitration Rules with Model Dispute Resolution
Clause: http://www.adrcanada.ca/rules/arbitration.cfm
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49. Resolving IT Disputes through ADR Part IV Drafting ADR Clauses
by Colm Brannigan and Michael Erdle, 2008
http://www.oba.org/En/InfoTech/newsletter_en/PrintHTML.aspx?DocId=34849
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50. Pathological Arbitration Clauses & Humpty Dumpty: Can
neither more nor less Mean So Many Different Things? by Babak
Barin, Canadian Arbitration and Mediation Journal, Fall 2007
http://www.adrcanada.ca/resources/documents/CAMJournalfall2007.pdf
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