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      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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C. Increasing Use of and Protections for Mediation and Other ADR Proceedings

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  1. We continue to see many clients move in the direction of ADR proceedings, which may, for example, include mandatory mediation to resolve many of the claims before they get to a longer, larger, and more expensive forum. 

  2. The courts will enforce conditions precedent requiring mediation.  E.g.  B & O Manufacturing, Inc. v. Home Depot USA., Inc., 2007 WL 3232276 (N.D. Cal. 2007) (dismissing claim for failure to mediate first).  Careful drafting of such provisions is key, however, to their utility.  See, e.g., USA Flea Market, Inc. v. EVMC Real Estate Consultants, Inc., 2007 WL 2615887 (11th Cir. 2007) (mediation provision would not survive termination of contract; ordering further proceedings on whether contract had been terminated).

  3. In our experience, more informal yet inventive and effective ADR techniques are being used in the areas of telecoms, products liability, and construction.  We are seeing staged claim procedures in a great many cases where a defendant is trying to resolve hundreds or thousands of claims in a rapid and even-handed way.  We see this mode of dispute resolution blossoming in 2009.

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