Don’t you dare miss a step: mediation and arbitration

By Hamish Lal2019-09-19T09:07:00

Does a mediation clause in the contract make it unlawful to proceed directly to arbitration, even after termination?

‘I have a quick question: The contract contains a mediation clause before we can go to arbitration – but we didn’t go to mediation – do you think we are good to arbitrate? Oh, we terminated the contract – not sure if that removes the need to mediate?” This hurried question from in-house counsel raises an array of elegant legal issues.

Put simply, these are as follows: Was mediation mandatory? Was mediation a condition precedent to arbitration in all circumstances or did disputes referred after termination have a direct route to arbitration? Was the mediation clause sufficiently clear and setting an objective process for the mediation? Could arbitration be commenced and then paused to allow compliance with the mediation step?

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