In the past few months, New Jersey courts have provided guidance to transactional lawyers drafting agreements with arbitration clauses. Employers cannot bury the arbitration provision, as part of a training program, that employees “acknowledge.”  Similarly, the section title cannot be misleading, and the font size must meet the standard of the Plain Language Act. Litigation waivers must be clear in consumer cases to meet Atalese standards.

Most recently, the Appellate Division has given the bar a “heads up” when drafting arbitration clauses. In a multi-contract relationship between sophisticated parties, language in the last contract saying the parties “may” arbitrate disputes using specified rules and other parameters was construed to mean that arbitration was permissive rather than mandatory. Medford Township School District v. Schneider Electric Buildings America’s, Inc., A-5798-17, — N.J. Super. —, 2019 N.J. Super. LEXIS 54 (N.J. Super. Ct. App. Div. Apr. 26, 2019).

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