The Case

For the courts to decline to enforce contractual references to ADR on the grounds of intrinsic uncertainty would be to fly in the face of public policy. Moreover, contractual references to ADR which did not include provision for an identifiable procedure would not necessarily fail to be enforceable by reason of uncertainty. In principle, where there was an unqualified reference to ADR, a sufficiently certain and definable minimum duty of participation should not be hard to find. The reference in an agreement to ADR was analogous to an agreement to arbitrate. As such, it represented a free standing agreement ancillary to the main contract and capable of being enforced by a stay of the proceedings or by injunction absent any pending proceedings.