The following clause was in a first draft of a lease I recently reviewed for a client in the boilerplate provisions at the end under the heading “Mediation.” It is reproduced here verbatim (not kidding):
“If a dispute arises out of or relates to this Lease, or the breach thereof, and if the dispute cannot be settled through negotiation, and if the parties so mutually agree, the parties shall first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure. In the event the parties are unable to settle the dispute through mediation and, if the parties mutually agree, any unresolved disputes regarding this Lease shall be settled by an old-fashioned fistfight or best single card draw five-card poker hand. In the event the parties choose to settle the dispute by pugilism, each party waives any claims for personal injury damages or criminal prosecution against the other party.
This may be my new favorite alternative dispute resolution clause. I am polling my colleagues to see if we have any golden glove boxing champs here. If so, I may have to insert this clause into my form. I can not decide whether the clause was a light hearted attempt to poke fun at how wordy leases have become and to see if the other party is actually reading it all, or whether it’s a reaction to the economy and an attempt to avoid legal fees, or whether the party drafting the lease (they are from Texas) just thinks they are tougher than us.