Arbitration and Mediation Editing and Proofreading Services

The dispute resolution clause is usually the last thing drafted and the first thing litigated. It goes in at the end of a negotiation, when the commercial terms are settled and everyone wants the contract signed, and it is written quickly because nobody expects to need it. Two years later it is the only clause anyone reads, and the argument is not about the goods or the money. It is about whether this dispute is one the clause covers.

Arbitration agreements and the clauses inside commercial contracts come to us most often. Mediation briefs and position statements arrive alongside them, together with settlement agreements and terms of settlement. We also edit procedural orders, submissions on jurisdiction, statements of claim and defense in arbitration, and draft awards.

The Federal Arbitration Act makes a written arbitration provision "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."¹ That sentence puts an unusual weight on the drafting. The agreement is not evidence that the parties chose arbitration; it is the thing that sends them there, and its scope is decided by reading it. A clause covering disputes "arising out of" a contract and a clause covering disputes "arising out of or relating to" a contract are not the same clause, and the difference is one preposition. Which of the two the parties intended is a question for counsel. Whether the document says the one they chose, consistently, in every place it is mentioned, is a question about the writing.

Consistency across the file is the harder half. A dispute resolution clause is rarely written once. It is copied from a precedent, amended in a schedule, referred to in a side letter, and echoed in a settlement agreement drawn up years later. Each of those documents names the rules, the seat, the number of arbitrators and the language. When a draft is revised in pieces, the clause in the main agreement says three arbitrators and the schedule says one, or the body names an institution the notice provision does not. Neither version is wrong on its own. Read together they describe two different procedures, and the party who wants delay has a preliminary issue to argue before the merits are reached.

Awards carry a different kind of exposure. Under 9 U.S.C. 10 a court may vacate an award "where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made."² The same section lists corruption, evident partiality, and refusal to hear pertinent evidence.² Whether a tribunal exceeded its powers is a matter for the court. What a draft award can do is show, on its face, what was submitted, what was decided, and that the second follows from the first: every head of claim in the submission addressed or expressly reserved, every figure in the reasoning matching the figure in the dispositive section, and no relief granted that no party requested. Where a draft resolves a point the parties did not put in issue, we raise it rather than smooth it over.

Mediation documents are written to be read once, by someone with a full docket, on the morning of the session. Some of them sit inside a court process rather than beside one: 28 U.S.C. 652 requires each federal district court to authorize the use of alternative dispute resolution in all civil actions and to devise its own ADR program by local rule.³ A brief written for a court-annexed mediation and a brief written for a private one answer to different rules about what may be said and to whom. A brief that buries the actual obstacle to settlement on page nine has failed at the only thing it was for. The material almost always contains the obstacle in a single sentence somewhere; the work is finding it and putting it where it will be read. Confidentiality regimes also differ between documents in the same file, and the difference matters. Rule 408 of the Federal Rules of Evidence makes evidence of "furnishing, promising, or offering ... a valuable consideration in compromising or attempting to compromise the claim" inadmissible to prove or disprove the validity or amount of a disputed claim.⁴ Documents drafted under that rule, documents drafted under an institution's confidentiality provisions, and documents drafted under a private confidentiality agreement are not interchangeable, and a passage moved from a mediation brief into a pleading can carry the wrong protection with it. Whether it may be moved is counsel's call. Flagging that it has been is ours.

Settlement agreements fail on their defined terms more often than on their substance. The release names the parties, and the parties are named again in the recitals, and the two lists are not identical. Affiliates are included in one clause and undefined elsewhere. A carve-out refers to a schedule that was renumbered. None of these change what the parties agreed. All of them give a later reader something to argue about, and a settlement agreement exists precisely to stop later argument.

We do not advise on any of it. Whether a clause is enforceable, whether a dispute falls inside it, whether a settlement figure is reasonable, whether an award is vulnerable, and whether a document may be shared are legal questions belonging to counsel and to the parties, and they reach us already decided. We do not widen or narrow a clause, add a party to a release, or resolve a conflict between two drafts by choosing one. Where two documents in the same file say different things, both versions come back with the difference set out, and the drafter decides which one is right.

Everything sent to us is confidential, including without-prejudice material, draft awards, and settlement terms that have not been executed.