Providing in the contract for ways to resolve disputes that may arise presents a substantial challenge to the lawyer. In one sense this is what he or she is doing in general in contract drafting--anticipating misunderstandings or problems which experience indicates are likely to arise, and trying to provide clear answers in advance. When it comes to drafting a specific clause for the resolution of further disputes which 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 where disputes might arise. Worst of all, the lawyer is probably not as wall informed about the law in this area as he should be if he is to help his client make wise choices. Lawyers who would never take a clause for a will from a form book without investigating its ramifications seem to see their way clear to inserting a short, standard arbitration clause with very little weighing of the consequences.
The other papers prepared by the speakers on our panel have presented a survey of arbitration law and typical problems which arise in practice in connection with the use of arbitration. This paper discusses the lessons that can be drawn from their material for the lawyer who is trying to draft a dispute resolution clause.
Publication Information & Recommended Citation
Gray, Whitmore. "Drafting the Arbitration Clause." In Arbitration: A Viable Alternative to Litigation, 1-9. Chicago: American Bar Assoc., 1984.