AGG Litigation partner and co-chair of the American Bar Association (ABA) Section of Litigation’s Alternative Dispute Resolution Committee, Henry Chalmers, was quoted in a March 23, 2022, article published by the ABA titled “Failure to Mediate Causes Dismissal of Case.”
In Rivas v. CBK Lodge General Partner, LLC, et al., a federal district court interpreted a contractual mediation clause to require that a dispute be mediated before proceeding to litigation, upholding a provision mandating mediation of “any dispute [that] arises between the parties” included third-party claims for indemniﬁcation, even though another clause in the same agreement limited indemniﬁcation to issues that “may arise from the [w]ork.”
To avoid this pitfall, Henry recommends careful drafting and cautions against using boilerplate language in mandatory alternate dispute resolution (ADR) provisions.
“The court treated the ADR provision to mean exactly what it said, even though mediation was unlikely to be successful without the participation of the plaintiﬀ,” said Henry. “While this might seem like an unnecessary step, especially considering that there was every indication that the case would not resolve through mediation, the court forced the parties to adhere to the language in the contract and to keep their word before resorting to litigation.”
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