Peace Talks Before War: The Enforcement of Clauses for Dispute Resolution Before Arbitration

There is a tendency to provide for some means of a brokered peace before the "war" of litigation. Such brokering clauses, dependent on concepts of good faith, are commonly inserted into contracts but uncommonly enforced. Dispute resolution clauses, forcing discussion, mediation, or friendly consultations, are becoming increasingly common in international contracts. The rise in such dispute resolution clauses coincides with growing acceptance of the benefits of negotiation or structured mediation prior to commencing adversarial dispute resolution, such as litigation and arbitration. This article will examine the types of alternative dispute resolution clauses and the extent to which alternative dispute resolution procedures, such as agreements to negotiate or mediate, can be enforced as a precondition to arbitration.