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The following sample provision does not rule out the possibility
of litigation, but clearly requires that the parties go through
the process of mediation before resorting to litigation.
Although a contractual provision cannot assure that a party will
participate in such a non-binding process in good faith and with
best efforts, experience has shown that once parties become
engaged in the mediation process, they tend to become committed
to it and the possibility of a negotiated resolution, especially
if the mediator is skilled:
You agree that any dispute that may arise regarding the meaning,
performance or enforcement of this engagement will, prior to
resorting to litigation, be submitted to mediation, and that the
parties will engage in the mediation process in good faith once
a written request to mediate has been given by any party to the
engagement. Any mediation initiated as a result of this
engagement shall be administered within the county of [County
and State], by [Name of Mediation Organization],
according to its mediation rules, and any ensuing litigation
shall be conducted within said county, according to [State]
law. The results of any such mediation shall be binding only
upon agreement of each party to be bound. The costs of any
mediation proceeding shall be shared equally by the
participating parties.
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