ADRIA Blog: ADR News

While the intention behind including an Alternative Dispute Resolution (ADR) clause in commercial contracts is often to provide a clear and efficient route for resolving disagreements outside of the traditional courtroom, the desire for absolute certainty can sometimes lead to overly complex clauses that ultimately undermine this very aim. 

The initial appeal of a highly detailed, almost court-like ADR process is understandable. It offers a perceived sense of control and predictability by meticulously outlining each step. However, this approach can often inadvertently create a ‘court process by another name’, replicating the very complexities and potential delays that ADR is intended to avoid. 

The Pitfalls of Overly Prescriptive ADR Clauses 

• Disputes as Part of the Agreement Lifecycle: 
  • When the primary focus shifts to meticulously adhering to every procedural detail of an overly complex clause, the actual substance of the dispute can become secondary. Parties may become more concerned with ‘ticking the boxes’ of the process than with actively seeking a mutually acceptable and pragmatic resolution, thereby undermining the fundamental purpose of ADR. 
  • Overly rigid timelines can create procedural breaches due to practical challenges in gathering information or agreeing on a neutral. 
  • Disputes rarely unfold in a predictable manner. Overly detailed clauses often lack the necessary flexibility to adapt to the specific and evolving circumstances of a particular disagreement. Rigid procedural steps can also limit the arbitrator or mediator’s ability to guide the process effectively and tailor it to the specific needs of the dispute. In other words – neither the parties’ purpose, not the arbitrator or mediator function, is enabled. 

• Increased Costs: 
  • Mandating specific and/ or external technical experts at various stages, even in straightforward disputes, can significantly inflate costs and make the ADR process disproportionately expensive. 
  • Overly prescriptive provisions relating to the arbitrator themself, especially those specifying highly niche expertise or requiring a panel of multiple arbitrators, can further increase costs. Finding individuals who meet these specific criteria within the stipulated timelines can become exceedingly difficult and costly, leading to further delays and frustration for the parties. 

In instances where these clauses are used and many of the challenges above are applicable, it may even frustrate the intention of the clause altogether and make the described dispute resolution clause functionally ineffective. Pretty to look at certainly, but useless in practice. 

The Benefits of Dispute-Responsive Clauses: 

In contrast to these overly prescriptive approaches, dispute-responsive clauses, such as a progressive dispute resolution clause, offer a more pragmatic and adaptable framework that provides the flexibility for the parties to agree on the specific dispute and mediation and/ or arbitration process for it. This allows for: 

• Flexibility and Adaptability: Tailoring the process to the specific needs of the dispute and available mediators or arbitrators, leading to more efficient and cost-effective resolutions. 
• Focus on Substance: Keeping the attention on the actual issues in dispute and encouraging parties to work towards a resolution, rather than being bogged down trying to check procedural boxes. 
• Reduced Costs: Avoiding unnecessary steps and the involvement of excessive personnel. 
• Greater Efficiency: Allowing parties to move through the process more quickly and reach a resolution sooner. 

Conclusion: 

While a desire for absolute certainty and control when drafting ADR clauses is understandable, overly complex and prescriptive approaches can often backfire and make the process unusable. Dispute-responsive clauses, which prioritise flexibility for both the parties and an arbitrator or mediator and the ability to tailor the process to the specific needs of the dispute, are often far more effective in achieving the core goals of ADR: efficient, cost-effective, and mutually acceptable resolutions that help preserve valuable business relationships. 

Disclaimer: This article offers general commentary and suggestions for consideration by ADR practitioners. It is not intended as a substitute for professional legal advice, and practitioners are responsible for exercising their own professional judgment and seeking specific legal guidance when advising clients or drafting legal documents. 

What happens in Vancouver stays in Vancouver, but when it comes to the ADRIC National Conference at the Douglas Hotel, I feel it’s only fair to share some of the highlights—especially the ones involving upside-down name badges and exotic hors d’oeuvres. 

On October 22-24, 2025, I had the privilege to attend the much-anticipated annual gathering of Canada’s ADR aficionados. The festivities kicked off with a cocktail reception on the evening of the 22nd and my valiant attempt to network while balancing a tiny plate, a drink, and what I hope was a spring roll (the jury is still out).

The main event unfolded over October 23rd and 24th, with Carla Bekkering, Michael Schafler, and a record 255 professionals from coast to coast convened to exchange wisdom, stories, and sometimes business cards. The conference promised a whirlwind of engaging discussions, insightful panels, and enough coffee to sustain the most dedicated of neutrals. With Vancouver’s rain providing the perfect backdrop, the ADRIC crowd proved once again that, whether resolving disputes or battling umbrella malfunctions, Canadians do it with style—and a healthy dose of humour.

Flanked by my two new conference friends, Valerie and Sara, the event kicked off with a classic case of “who’s on first?” as Gary Lacasse and Stacey Rose tried to figure out who was introducing whom. 

The 2024 financial statements were presented and, most importantly, showed that the Institute is not broke and everyone is still friends with the auditors. A slate of directors was announced, and membership is stable at 2,200. The social media reach is so impressive that even your grandma might have seen a post from ADRIC.

The Honourable Wally Oppal charmed the crowd with tales of legal reform, cross-examination, and the importance of resolving disputes without turning every disagreement into a courtroom drama. He also reminded everyone that judges are people too, even if they do get special treatment in elevators.

I enjoyed every session I attended, but I am limited to reporting on only two as follows. 

The Tariff Tango

Canada and the U.S. are doing the “Tariff Two-Step” and trying to keep up with a landscape that changes faster than you can say “reciprocal duties.” Every time you blink, there’s a new policy, tariff, or a new reason to call your lawyer on a Saturday morning.

The session title had a typo—no, it’s not about “terror-related disputes”; it’s all about how tariffs are crashing the ADR party and making everyone rethink their contracts.

Canada and the U.S. have been hitting tariffs back and forth like a couple of caffeinated baseball pros. One day it’s steel, the next it’s aluminium, and don’t even get started on softwood lumber.

It turns out, most contracts weren’t written with a “tariff apocalypse” in mind. But now the scramble is on to figure out if they cover these new headaches or if they need to add a “tariff tantrum” clause for next time. Is a tariff a force majeure event? Is it a change in law? Or is it just another reason to renegotiate the price and hope nobody notices the fine print? 

The advice: add risk allocation clauses, price adjustment clauses, and maybe an early warning system and mitigation strategy in the future so everyone can panic together when the next tariff hits. And if all else fails, just renegotiate, terminate, or pray for free trade.

Lessons Learned from Complex Multi-Party Construction Arbitrations

A group of legal and technical experts, each with more credentials than a Swiss Army knife, gathered in Vancouver to discuss the wild world of construction arbitration. This is what I enjoyed and learned:

Drafting Arbitration Clauses

• Rule #1: Make sure everyone knows what the clause is for. Is it mandatory? Optional? Written in Klingon?
• Rule #2: Check your jurisdiction. You don’t want to end up arbitrating in Quebec when you thought you were in Ontario.
• Rule #3: Consistency is key. If your contracts are a patchwork quilt of rules, expect chaos.
• Rule #4: Don’t just copy and paste from the internet. That is how you end up with four different dispute processes in four different countries and a headache that even the best arbitrator can’t fix.

Choosing Rules and Institutions

• Institutional rules can bring order, but sometimes you want the flexibility to run for the hills (or at least to another forum).
• Once you pick an institution, you’re stuck with it—like a gym membership you can’t cancel.

Experts: Early Birds or Late Arrivals?

• Bring in experts early, and they’ll help you keep your ducks (and documents) in a row.
• But beware: if your expert gets too cozy with the team, they might lose their independent badge and become just another member of the project’s group chat.
• The ideal? Two experts: one for advice, one for testifying. But unless the client is made of money, good luck with that!

Arbitrator Selection

• Lawyers love lawyers, but sometimes you need someone who knows what a hard hat is.
• For complex disputes, a panel of three might be better—think of it as assembling the Avengers, but for construction law.
• Pick arbitrators who can actually show up (not just in spirit) and who can keep the process from spiralling into a months-long saga.

Virtual vs. In-Person Hearings

• Virtual hearings are fine—unless you need to stare someone down to see if they’re lying.
• Some witnesses are better live, especially if they have a thick accent and a killer PowerPoint.
• Lawyers love to draft witness statements, but sometimes the witness reads them and says, “Wait, I said that?”

Experts Galore

• Too many experts? Prepare for a domino effect of delays and last-minute panic.
• Joint reports and hot-tubbing (expert conferencing, not a spa day) can help, but don’t expect everyone to suddenly agree and sing Kumbaya.

Why You Should Attend Next Year

Beautiful Venue

If this year’s venue is anything to go by, then ADRIC put on a “good do,” and there’s even time to go out and sample the local restaurants and bars.

Charming Company

I mean, who doesn’t want to catch up with old friends, make new ones, and get the inside information on how to get onto the new roster?

Networking Olympics 

Where else can you balance a tiny plate, a drink, and a questionable spring roll while trying to remember everyone’s name? And it’s the only place where upside-down name badges are a fashion statement.

Legendary Speakers 

You’ll hear tales of legal reform, cross-examination, and why judges get special treatment in elevators. Plus, you’ll learn that resolving disputes doesn’t have to turn every disagreement into a courtroom drama.

If you want to survive in the wild world of ADR, draft carefully, pick your team wisely, and always check who’s in the penalty box before dinner. And remember: what happens in Vancouver stays in Vancouver—unless it’s too funny not to share.

In any contract lifecycle, disputes are inevitable. Alternative Dispute Resolution (ADR) clauses, promising cost-efficiency, confidentiality, and a solution outside the traditional courtroom, are often tucked away in the latter part of the contract or General Terms as a boilerplate clause meant to provide a framework for resolving those disagreements. 

But what happens when the foundation the ADR clause rests on – the contract’s validity – is called into question? This is where the often-overlooked word “validity,” or the phrase “and validity thereof,” becomes critically important.

Imagine a scenario where a disagreement arises, and one party claims the entire contract is invalid due to issues with its formation, perhaps alleging misrepresentation, or lack of capacity by a signatory, etc. If the ADR clause doesn’t explicitly address disputes concerning the validity of the contract itself, you could find yourself in a precarious situation as an arbitrator. 

Here’s why this seemingly small detail can have a significant impact: 

The Four Walls of the Contract: Contractual dispute resolution, especially arbitration, operates within the confines of the contract that created it. The arbitrator’s appointment, authority to adjudicate the dispute, have their award be enforceable within that contract, by that same token, is also typically derived from the contract between the parties. 

If the contract creating that process is then found to have been invalid, the basis for arbitration becomes equally invalid. 

Note that this will only be applicable where the contract is found to have never been valid – not where the contract was initially valid and then became, or is found to have become, invalid thereafter. 

The Arbitration Paradox: Consider the irony: a party arguing that the contract is invalid might also be required to participate in an arbitration process outlined within that very contract. Without a clear provision addressing validity, courts may struggle with how to proceed. Does the arbitrator have the power to decide on the validity of the contract itself? Or does that question need to be resolved in court first, potentially undermining the efficiency goals of ADR? 

The Risk of Parallel Proceedings: The absence of “validity” in the ADR clause can also lead to a messy situation where one party initiates arbitration while the other party files a court action challenging the contract’s validity. This can result in costly and time-consuming parallel proceedings as the court will need to consider its own jurisdiction as well before hearing the case, defeating the purpose of having an ADR clause in the first place. 

So what now? 

Protect the dispute resolution mechanism 

• Write it in at the start

Ensure certainty and clarity by including the phrase “and validity thereof” in your ADR clause acts as a safeguard. 

By clarifying this seemingly minor detail while drafting you can save significant time, money, and headaches down the road, ensuring that your chosen path to dispute resolution remains effective and reliable. 

• Amend the contract prior to arbitration to include it

You may be engaged and on review of the contract and an overview of the matters in dispute, it becomes clear that those matters include something that can invalidate the contract, propose that the parties amend the ADR clause to include necessary language to ensure the clause will survive to enable adjudication. 

Conclusion 

Ultimately, putting the words “and validity thereof” in your ADR clause isn’t just legal jargon – it’s a practical step that makes good sense. By clearly stating that your chosen way to resolve disagreements also covers any arguments about whether the contract itself is valid, you can steer clear of confusing legal battles and the risk of ending up in both arbitration and court at the same time. This small addition makes sure your agreed-upon method for solving problems can actually do its job properly and efficiently, protecting the time and money you hoped to save in the first place. 

Disclaimer: This article offers general commentary and suggestions for consideration by ADR practitioners. It is not intended as a substitute for professional legal advice, and practitioners are responsible for exercising their own professional judgment and seeking specific legal guidance when advising clients or drafting legal documents.