Contract Drafting

If you are convinced of mediation as alternative dispute resolution tool and you would like to have this „door open“ in case of an upcoming dispute about a commercial contract, you might consider to include a mediation clause into your future business-to-business contracts.

A varietey of publically available mediation clauses can be found for example on the internet sites of the International Chamber of Commerce (ICC) or of the Centre for Effective Dispute Resolution (CEDR).

From our experience and due to the key principle that every mediation must be voluntary, it is questionable to use a mediation-clause that would „force“ both parties into mediation before they can start a litigation. Because if a mediation does not happen voluntarily by both parties, it will most probably not be successful and might only be a waste of time and money before a litigation will anyway start. Therefore, from our perspective it would make more sense to include a completely voluntary mediation clause, e.g. along the following lines:

„The parties may at any time, without prejudice to any other proceedings, seek to settle any dispute arising out of or in connection with the present contract by mediation.“

A clause like this, combined with additional standard clauses that define the choice-of-law and the competent courts, could serve as a good reminder to both parties that mediation might be an option, in case a dispute would arise. But it would nevertheless keep the mediation completely voluntary and not as a mandatory prerequisite to start litigation.

For the avoidance of doubt, the beforementioned practical and very general tips do not constitute any legal advice. It´s just the personal opinion of the authors of this internet-site. Any concrete legal questions in the context of drafting specific contracts, you need to get assessed by a lawyer who is qualified to practice law under the jurisdiction of the country in question.