If the parties decide to have their disputes settled by arbitrators or binding advisors instead of the court, or if they wish to attempt, with the help of a mediator, to reach a compromise if a dispute arises, they must conclude an agreement to this effect. Arbitration, binding advice and mediation require different agreements. All three forms of alternative dispute resolution can be agreed (in clauses) before a dispute arises, but even if that has not been done, it is still possible to do so when a dispute arises (in a dispute resolution agreement in the case of arbitration and binding advice).
Clauses are standard paragraphs that may be included in contracts without the consent of the NAI and without any costs being incurred. In most cases, it is sufficient to include a standard clause. In practice, these clauses have proven to be formulated in such a way as to cause the fewest problems. Yet there are situations conceivable in which a specific clause must be created. This is particularly important when a clause is included in standard terms and conditions. The NAI provides advice in such cases.
An arbitration or binding advice agreement is laid down in a dispute resolution agreement if the parties opt for this form of alternative dispute resolution if a dispute has already arisen. The dispute resolution agreement must at least include the names of the parties, a broad description of the dispute and the desire of the parties to have this dispute settled by means of arbitration in accordance with the NAI Arbitration Rules or by means of binding advice in accordance with the NAI Binding Advice Rules.
The parties may include in a mediation clause that they will endeavour to resolve (future) disputes with the help of a mediator, but even without making such arrangements the parties may turn to the NAI with the request to ask the other party or parties involved whether they are willing to conclude an agreement that aims to resolve the dispute by means of mediation according to the NAI Mediation Rules. If all parties agree to this, a mediator is appointed. The parties and the mediator conclude the mediation agreement between themselves.
In case of mediation, it is advisable to make an arrangement for the event that the mediation leads to no resolution, or only a partial resolution, of the dispute, for example by including an NAI arbitration clause after the mediation clause in the contract.