Dispute language suggested for contracts
October 1, 2001 3 minutes read
Dispute language suggested for contracts
Here’s some arbitration/mediation wording
Here are several examples of language developed by the American Arbitration Association (AAA) of New York City for inclusion in contracts that provide for the arbitration of future disputes.
• Example 1: This language can be used in contracts.
"Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its National Rules for the Resolution of Employment Disputes, and judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof."
• Example 2: Arbitration of existing disputes can be accomplished by use of the following clause.
"We, the undersigned parties, hereby agree to submit to arbitration, administered by the American Arbitration Association under its National Rules for the Resolution of Employment Disputes, the following controversy: (describe briefly). We further agree that the above controversy be submitted to (one) (three) arbitrator(s) selected from the roster of arbitrators of the American Arbitration Association, and that a judgment of any court having jurisdiction may be entered on the award."
• Example 3: Parties may agree to use mediation on an informal basis for selected disputes, or mediation can be designated in a personnel manual as a step prior to arbitration, litigation, or some other dispute resolution technique. If the parties want to adopt mediation as part of their contractual dispute-settlement procedure, they can add the following mediation clause to their contract.
"If a dispute arises out of or relates to this contract, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Employment Mediation Rules before resorting to arbitration, litigation or some other dispute resolution process."
• Example 4: If the parties want to use a mediator to resolve an existing dispute, they can enter into the following submission:
"The parties hereby submit the following dispute to mediation administered by the American Arbitration Association under its Employment Mediation Rules (the clause may also provide for the qualifications of the mediator(s), method of payment, locale of meetings, and any other item of concern to the parties)."
Employee disputes
If you decide to set up an arbitration or other alternative dispute resolution mechanism in your practice, here are some suggestions from the AAA’s Task Force on Alternative Dispute Resolution in Employment:
- Due process protocol. Employees should not be permitted to waive their right to judicial relief of statutory claims arising out of the employment relationship for any reason.
- Choice of representative. Employees considering the use of or now utilizing mediation and/or arbitration procedures should have the right to be represented by a spokesperson of their own choosing. The mediation and arbitration procedure should also specify and include reference to institutions that might offer assistance, such as bar associations, legal service associations, civil rights organizations, trade unions, etc.
- Fees for representation. The amount and method of payment for representation should be determined between the claimant and the representative. The AAA, however, recommends employers reimburse at least a portion of the employee’s attorney fees, especially for lower-paid employees. The arbitrator should also have the authority to provide for fee reimbursement, in whole or in part, as part of the remedy.
- Access to information. Adequate but limited pre-trial discovery is to be encouraged and employees should have access to all information reasonably relevant to mediation and/or arbitration of their claims. The employees’ representative should also have reasonable pre-hearing and hearing access to all such information and documentation.
"Necessary pre-hearing depositions consistent with the expedited nature of arbitration should also be available," says the AAA.
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