The American Arbitration Association (AAA) is set to launch ClauseBuilder Tuesday,
a new online tool that will facilitate the creation of arbitration and
mediation agreements. It is the first such tool to be offered by an
alternative dispute resolution services provider.
Although
web-based tools for drafting contracts were already abundant, AAA
general counsel Eric Tuchmann told CorpCounsel.com that up until now,
“there was nothing for alternative dispute resolution.”
Since
1926, the AAA has provided services to individuals and organizations
seeking to resolve conflicts out of court. The not-for-profit
association also educates the public about alternative dispute
resolution and develops ADR systems for corporations, unions, government
agencies, law firms, and courts.
The AAA’s first version of
ClauseBuilder will address arbitration and mediation clauses
specifically designed for commercial arbitration contracts. Tuchmann
says that “those types of agreements represent the largest category of
cases where we see interest and demand for alternative dispute
resolution services.”
Subsequent versions of the tool will be
released throughout 2013. The AAA has versions in development that are
tailored to construction, international, and employment contracts.
Users start with the association’s standard clause:
Any
controversy or claim arising out of or relating to this contract, or
the breach thereof, shall be settled by arbitration administered by the
American Arbitration Association in accordance with its Commercial
Arbitration Rules and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
That language is “time-tested and court-tested,” says Tuchmann.
From
the foundation of that standard clause, users can opt for mediation,
arbitration, or both, and then pick and choose from a list of add-on
options to customize the clause to meet their specific needs. “There are
a lot of components,” says Tuchmann, and the list includes choices of
governing law, locale provisions, duration of proceedings, and several
options for controlling arbitrator selection and qualifications.
When
choosing the number of arbitrators, for example, users can decide
between leaving the clause silent regarding number, having their claim
heard by a single arbitrator or a panel, or making the selection
dependent on the claim amount.
Arbitrator selection is a top concern when drafting any ADR clause,
Tuchmann says, and the ClauseBuilder tool takes that into account.
“Parties want to be able to control who the decision-maker is,” says
Tuchmann.
At any point in drafting their clause, users can skip to
the end of the process. Their document can be downloaded and printed,
without having to create a user account. (If users want to revisit the
site and rework a clause that was previously created, they can open an
AAA account to store their documents.)
Tuchmann has been with the
AAA for more than 16 years, during which time he has seen interest in
ADR increase dramatically. Parties are attracted to its speed of
resolution and low cost, compared to traditional litigation. Courtroom
rules of evidence are not strictly applicable in arbitration, and
parties have input when it comes to selecting a decision maker with
expertise in a particular claim area.
In recent years, it has
become the exception for a law school not to offer courses in ADR,
according to Tuchmann. “The way that lawyers are thinking about disputes
is just much more sophisticated now,” he says. “We see a great future
for the tool and for the entire field.”
Will ClauseBuilder eliminate in-house lawyers’ need for having outside lawyers draw up mediation and arbitration agreements?
Tuchmann
says that there will still be times when parties have a very particular
type of transaction that will require outside counsel services. But he
says that in-house counsel can use ClauseBuilder to draft most
arbitration agreements themselves. They have already been drafting their
own clauses in many instances, says Tuchmann, and “the purpose of this
tool is to make it easier.”
Source: law.com
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