A Simple Clause/Martin Rosenfeld, JD

Posted on February 11, 2019


I had a Professor for an Education class who pointed out that teachers should not shy away from personal discussions. Specifically, she urged the students, once in a classroom, to discuss why they chose to be teachers. It is only natural that a teacher of the young explain why they wish to teach the young. Are they driven by a love of children, a love of learning, a love of sharing, etc? In similar fashion, a mediator needs to convey the faith they have in the process of mediation.

I make sure that in all my agreements, I insert a mediation clause. The clause states that if any disputes arise from the agreement, the parties will try to resolve them by going to mediation or arbitration before even considering proceeding to litigation. I believe these clauses should also be inserted in prenuptial agreements, accords, etc. (I suspect that a prenuptial agreement that only has a mediation clause may well serve to resolve many, if not most of the issues, that may arrive in case of future divorce.) A mediator displays the fact that they have confidence in mediation process by giving due regard, in drafting agreements, to future mediation considerations in cases of dispute. If we as mediators do not boost mediation process who else will do so? Mediate don’t litigate.