Thursday, April 2

ADR clauses force parties to the table

They came to mediation today because they had to - there was a mediation clause in their contract.

They both felt press-ganged into being at the table, but what to do? They can't do litigation until they've done mediation and it did seem like a good idea when the lawyers drafted it two years ago.

But today it threatened to sabotage the mediation, just when they needed it most.

My M.O. has always been, 'they'll come round once we get underway' but today it continued to be the elephant in the room far longer than was good for us.

As an increasing number of commercial contracts contain an increasing number of ADR clauses and as more people find themselves in mediation because them, mediators will need to develop effective interventions to deal with this particular animal.

Any suggestions?

1 comment:

Paul Gale said...

Only one thing you can do - call it! If you play the naive mediator people will think that you have no grasp of reality and will get irritated. So, say pretty much what you've written, and say it early - "Look, I know you're here mainly because of a clause in the contract. That clause was put there for a good reason - any thoughts? [Stony silence] Well, disputes like this can last for years and cost big bucks. So one thing that clause was put there for was to save you money. If that seems like a good idea, let's get down to thinking about what you want to achieve here today."

Sounds crazy, but it just might work......