Alternative Dispute Resolution in Technology Agreements: Negotiation Provisions and the Risk of Unintended Consequences

摘要

Negotiation provisions are popular and in widespread use today. Unfortunately, there are serious questions about the enforcement and interpretation of this type of alternative dispute resolution mechanism. The lack of clear guidance in many jurisdictions makes it difficult to resolve those questions. For this reason, it may be best to avoid the use of negotiation provisions. Certainly it is reasonable to conclude that (1) negotiation provisions should not be necessary to compel negotiations when the parties are willing to negotiate and (2) as provided by the court in Central Contracting, negotiations "would be a futile exercise" when the parties are not willing to negotiate.