When Arbitration Is Required, Should You Still Try Mediation First?

In commercial and construction contracts, arbitration clauses are now the norm. They appear routinely—tucked into the fine print of everything from service agreements to bylaws to multimillion-dollar joint venture deals. These provisions typically require that disputes be submitted to binding arbitration, bypassing the courts entirely.

When a dispute arises and the contract says you must arbitrate, is there any reason to consider mediation first? Actually, there is.

After decades working cases in courtrooms and alternative dispute resolution (ADR) panels—and now wearing the neutral's hat full time—I've seen firsthand how early mediation can shift the trajectory of a dispute.