By Leslie King O’Neal
Parties Can Agree to Arbitrate After Dispute Arises
If the parties’ contract specifies litigation to resolve disputes, but the parties want to arbitrate, what are their options? Can parties agree to arbitrate despite the contract’s language? Yes, they can! Arbitration is a creature of contract, but parties can agree to arbitrate after a dispute arises, even if their contract has no arbitration clause. Welcome to the world of submission agreements. These are post-contract agreements where parties agree to submit a dispute to arbitration. They can agree to have AAA or JAMS administer the arbitration. CPR[i] has submission agreements for administered and non-administered arbitrations.
AAA and JAMS Submission Agreements
JAMS and AAA have templates for parties’ use for post-dispute stipulations to arbitrate. JAMS has templates for expedited arbitration and for standard arbitration, and where arbitrators have been selected and where they have not.[ii] AAA’s dispute resolution submission form allows parties to select mediation or arbitration and to specify the AAA Rules they want to apply.[iii]
CPR Submission Forms
CPR allows parties to choose administered[iv] or non-administered arbitration.[v] CPR provides model submission clauses for both administered and non-administered arbitrations, allowing parties to decide the level of administration they desire.[vi] Non-administered arbitration is best suited to sophisticated, experienced parties and counsel because it requires a high level of cooperation.
Why Choose a Model Submission Clause?
The model clauses are templates which parties and their counsel can use as the basis for a post-dispute arbitration clause. As with all forms, they should be customized to fit the particular parties and the particular dispute. They provide a good foundation to ensure the submission clause contains necessary elements to make the agreement enforceable. This can help parties avoid pitfalls in drafting such agreements.
Takeaways
- Even if the parties’ contract specifies litigation to resolve disputes, parties can submit disputes to arbitration using stipulations or submission agreements.
- AAA, JAMS and CPR offer many templates for post-dispute submission agreements.
- Parties and counsel should carefully consider the pros and cons of ad hoc arbitration before choosing this option.
[i] The International Institute for Conflict Prevention & Resolution, known as the CPR Institute. https://drs.cpradr.org/about
[ii] JAMS Arbitration Forms & Documents, Stipulation for Arbitration (expedited and standard)
[iii] AAA Submission to Dispute Resolution form; https://www.adr.org/media/4injcon5/commercial_form_arbitration-submission-form-commercial_2010_10_19.pdf
[iv] Parties that choose the CPR administered arbitration rules now automatically benefit from CPR’s expertise in helping parties to choose a neutral, managing the process for challenging the selection of a neutral (relieving the need for parties to deal with the remuneration of arbitrators directly), reviewing draft awards and providing counsel to parties on the application of the rules. https://drs.cpradr.org/about
[v] For those sophisticated parties that prefer to resolve disputes without the automatic support of the CPR Dispute Resolution Services, the original procedures, the non-administered rules, as updated, continue to provide that option. Parties using the non-administered rules can choose the above-mentioned services a la carte. Id.
[vi] CPR Arbitration Model Clauses https://drs.cpradr.org/model-clauses/arbitration-model-clauses
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