JAMS dispute resolution clause language

Arbitration and mediation clause language for use in contracts

In a competitive global marketplace, few companies welcome the time, expense and adverse business consequences of traditional litigation. Such concerns are magnified when doing business abroad.

It is recommended practice, therefore, that when entering into a contract or business relationship, companies should consider and decide on the procedures that will govern the resolution of any disputes that may arise in the course of that relationship.

By providing for effective dispute resolution before a conflict emerges, parties may avoid attempting to negotiate in the midst of a substantive dispute in circumstances where trust on both sides has diminished.

Standard language, tested by the courts, is provided below in a cut and paste format as well as set forth in a downloadable workbook.

Standard JAMS International arbitration clauses

Any dispute, controversy or claim arising out of or relating to this contract, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of [three arbitrators][a sole arbitrator]. The place of the arbitration will be [location]. The language to be used in the arbitral proceedings will be [language]. Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof.

Standard JAMS International mediation clause

The parties agree that any dispute, controversy or claim arising out of or relating to this contract shall be submitted to JAMS or its successors for mediation under the JAMS International Mediation Rules. Either party may commence mediation by providing a written request for mediation (“Request for Mediation”) to JAMS and the other party, setting forth the subject matter of the dispute and the relief requested. If the dispute has not been settled within 45 days following the filing of a Request for Mediation or within such other time period as the parties may agree in writing, the parties shall have no further obligation under this paragraph.

Standard JAMS International facilitation clause

The parties agree that any dispute, controversy or claim arising out of or relating to this contract shall be submitted to JAMS or its successors for facilitation under the JAMS International Facilitation Rules. Either party may commence facilitation by providing a written request for facilitation ("Request for Facilitation") to JAMS International and the other party, setting forth the subject matter of the dispute and the relief requested. If the dispute has not been settled within 45 days following the filing of a Request for Facilitation or within such other time period as the parties may agree in writing, the parties shall have no further obligation under this paragraph.

JAMS International Step Clauses

CLAUSE PROVIDING FOR NEGOTIATION IN ADVANCE OF ARBITRATION

  1. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the dispute and who are at a higher level of management than the person with direct responsibility for administration of this Agreement. Any party may give to the other party written notice of any dispute not resolved in the ordinary course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include with reasonable particularity a) a statement of each party’s position and a summary of arguments supporting that position, and b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place. 
  2. Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of the executives described above (“First Meeting”). Such closure shall not preclude continuing or later negotiations, if desired. 
  3. All offers, promises, conduct and statements, whether written or oral, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation. 
  4. At no time prior to the First Meeting shall either side initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS International Arbitration Rules or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of Paragraph 1. 
  5. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified in Paragraphs 1 and 2 above are pending and for 15 calendar days thereafter. The parties will take such action, if any, required to effectuate such tolling. 
  6. If the dispute has not been settled at the close of the First Meeting as defined above, or within such time period as the parties may agree in writing, either party may initiate arbitration with respect to the matters submitted to negotiation by filing a written demand for arbitration with JAMS or its successors. The negotiations may continue after the commencement of the arbitration if the parties so desire. 

 

CLAUSE PROVIDING FOR MEDIATION IN ADVANCE OF ARBITRATION 

If the matter is not resolved by negotiation pursuant to paragraphs ___ above, then the matter will proceed to mediation as set forth below. 

Or in the Alternative 

If the parties do not wish to negotiate in advance of arbitration, but do wish to mediate before proceeding to arbitration, they may accomplish this through use of the following language: 

The parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation. Either party may commence mediation by providing a written request for mediation to JAMS and the other party, setting forth the subject of the dispute and the relief requested. If the dispute has not been settled within 45 days following the filing of a Request for Mediation or within such longer time period as the parties may agree in writing, either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration with JAMS. The mediation may continue after the commencement of the arbitration if the parties so desire. 

At no time prior to the First Meeting shall either side initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS International Arbitration Rules or by agreement of the parties.

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