Yesterday, I received an email alert from the American Arbitration Association announcing ClauseBuilder, an on-line arbitration and mediation tool that assists individuals and organizations in drafting arbitration and mediation agreements. According to the alert, ClauseBuilder is the "first tool of its kind to be offered by an Alternative Dispute Resolution (ADR) service provider."
The new tool provides parties with the AAA’s standard arbitration agreement, in addition to an array of options parties may consider when crafting customized ADR clauses, including specifying:
- the number of arbitrators;
- arbitrator qualifications;
- locale provisions;
- governing law;
- the duration of arbitration proceedings; and
- whether to use arbitration, mediation, or both.
This morning, I took ClauseBuilder for a spin. Below I describe the process of creating an arbitration clause for an existing dispute, as well as my thoughts about the usefulness of the platform:
- Industry Application. There is no current option for construction contract, and AAA readily admits that ClauseBuilder only deals with commercial arbitration contracts at this time. I look forward to seeing how the application integrates construction and international contracts.
- Timing of Dispute. After selecting the type of dispute, you are asked to select whether the arbitration clause is for a "Future" dispute or an "Existing" dispute. I appreciate this option because there will be times that parties will agree to arbitration, although there is no dispute provision in their contract or in the absence of a contract. The "Existing" dispute option allows you to quickly create an arbitration agreement to allow the parties to proceed with ADR.
- Standard versus Tailored. After selecting the timing of the dispute, ClauseBuilder allows you to simply use the standard clause or choose optional clause provisions. Currently, the standard clause reads: "We, the undersigned parties, hereby agree to submit to arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules the following controversy: __________________________. We further agree that a judgment of any court having jurisdiction may be entered upon the award." If you choose "optional clause provisions" then you will have the option of selecting: (a) the number of arbitrators; (b) arbitrator qualifications; (c) location of proceedings; (d) governing law; (e) extent of discovery; (f) extent of oral evidence and argument; (g) duration of proceedings; (h) types of damages or remedies; (i) attorneys fees and costs; and (j) whether a reasoned opinion is to be given with the award. There are other options such as confidentiality provisions, non-payment of arbitration fees, and appeal rights that the parties may agree upon.
- Review the Clause. At the end of the process, you have an opportunity to review the clause online, download it as a text file, or print it. If you want to save the clause for future use through the ClauseBuilder website, you will need to use your login information. When I chose to "download" the clause, it immediately opened in MicrosoftWord and I was able to make any additional edits and finalize the provision.
In the end, I think this is a good resource for outlining some of the alternative dispute resolution options for either an existing or future dispute. It is not enough for me to simply take the "test version" that I just drafted and update for future use on my own computer because there are so many options available, depending on the parties, the dispute, the amount in controversy, etc. (…you get the picture…). I definitely would return to ClauseBuilder to review some of these many options. I will be interested to see what additional information will become available with the construction and international versions.