There is a saying that in business, everything is negotiable. This proposition holds true when it comes to drafting a contract and the inclusion of a provision for alternative dispute resolution (ADR). There are many issues that must be considered when these clauses are drafted: Should it call for mediation or arbitration? Should it be binding or non-binding? Should it allow for the option of litigating or appealing the result? And there are innumerable options to tailor how the ADR actually is to proceed. A well-drafted ADR provision will be all inclusive, addressing all these items, and will leave little to no room for the parties to disagree about the process. Indeed, this is one of the many benefits of ADR proceedings; they permit the parties to have flexibility to negotiate and tailor their own procedures—including discovery rules—to address the specific matter at hand.
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