An agreement to arbitrate can empower the parties and afford them a good deal of control over the dispute resolution process. A well-constructed arbitration clause can provide certainty by outlining the process prior to a dispute. Once a dispute arises, it is far more unlikely the parties will reach an agreement as to how an arbitration should proceed. All too often, however, an agreement to arbitrate is one of the last clauses in a contract on which the drafter focuses. While the focus is typically—and appropriately—on the business terms of the agreement, careful consideration should still be given to an arbitration clause to ensure the client's goals in submitting to arbitration are met. Below are areas to consider when drafting an arbitration clause.

Scope. Be particular when identifying the scope of the arbitration agreement. Using terms such as "in connection with" the contract or "under the terms of" the contract have different meanings. Decide whether the parties want a broad arbitration clause that will include any disputes that relate to the agreement or prefer a more tailored agreement that only submits certain disputes to arbitration. If, for example, there is a particular aspect of a transaction that may come into dispute that would best be decided by an expert in that field, then carving out such a dispute may indeed be the prudent course. Just be clear about what is to be arbitrated and what is not. If a standard clause works, use it. But don't be afraid to modify the arbitration clause to suit your client's needs—just be thoughtful and cautious when doing so.