Providing in a contract for ways to resolve disputes that may arise presents a substantial challenge to the lawyer. In one sense, this is what a lawyer regularly does in contract drafting-anticipating misunderstandings or problems that experience has indicated are likely to arise, and trying to provide clear solutions in advance. When it comes to drafting a specific clause for the resolution of further disputes that may arise, however, many lawyers are at a substantial disadvantage. The task comes at the end of the substantive negotiations. The client does not want to focus on, or draw the other party's attention to, possible areas in which disputes might arise. Worst of all, the lawyer is probably not as well informed about the law in this area as he or she needs to be in order to help the client make wise choices. Lawyers who would never take a clause for a will from a form book without investigating its ramifications seem to be willing to insert a short, standard arbitration clause with very little weighing of the consequences or investigation of more sophisticated alternatives.
The other chapters in this book collectively present a survey of legal and practical problems that arise in connection with the use of arbitration and other alternatives to litigation. This chapter discusses the lessons that can be drawn from that survey for the lawyer who is trying to draft a contract dispute resolution clause. Part I is a checklist of questions to be considered. Part II provides examples of clauses that attempt to solve these problems in various ways.
Publication Information & Recommended Citation
Gray, Whitmore. "Drafting the Dispute Resolution Clause." In Commercial Arbitration for the 1990s, edited by R. J. Medalie. Chicago: American Bar Assoc., 1991.