Agreement to Negotiate/Mediate: A Matter for Careful Drafting

Dispute resolution provisions have taken on new meaning these days. Not too long ago, such provisions were frequently regarded as little more than clauses dealing with the agreement to arbitrate. Then mediation came into vogue, and mediation-arbitration provisions became popular, requiring parties to consider mediation proceedings before resorting to arbitration. When even mediation came to be regarded as time-consuming, overly legalistic, and expensive (in keeping with the common misconception that anything involving lawyers is time-consuming and expensive), ingenious practitioners came up with a new provision, one we can conveniently name "the discussion-mediation-arbitration provision."

Usually, this means that another level of discussion is required before mediation proceedings can take place, and the discussions themselves may have further "sublevels," with the result that mandatory discussions between executives at different levels are frequently required (if talks fail at one