Mandatory Mediation Clauses: Can You Make the Horse Drink?
How successful are the mandatory mediation clauses in practice? Typically, such clauses call for a good-faith effort at mediation before one party to a contract in dispute can demand arbitration, although conceivably the mediation condition could precede litigation as well as arbitration. I decided to ask my partner, Richard “Rick” Lowe, who is a Fellow of the American College of Construction Lawyers, both a mediator and arbitrator in Philadelphia and New York, not to mention the Mayor of Swarthmore. He is fresh from teaching a CLE course on the do’s and don’ts of arbitration clauses.
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