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This is a follow up question from the following stack exchange question found below:

How to interpret this paragraph from an MNDA in context with Ohio law?

I would like the paragraph to convey that mediation needs to happen first before the injunction relief occurs. I wanted to check if my edits to the paragraph make that clear.

  1. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach according to the procedure outline in section 13 below and, in the event of such breach, an award of actual and exemplary damages.

Section 13 is as follows:

  1. The interpretation and validity of this Agreement and the rights of the parties shall be governed by the laws of the State of Ohio. Any action brought to enforce this Agreement shall be brought in Ohio but only after first having gone through mediation at a location reasonably convenient to all parties in an attempt to efficiently resolve any disputes that might arise.

If this doesn't express mediation needs to occur first, is there better language I can use to convey this idea?

As a side note, MNDA stands for Mutual Non-Disclosure Agreement.

closed as off-topic by Nij, A. K., bdb484, Dave D, Tim Lymington Sep 12 '18 at 17:03

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  • "I would like the paragraph to convey that mediation needs to happen first before the injunction relief occurs." In practice, this would be a very bad choice. If information is disclosed due to the absence of a court order, the cat can't be put back into the bag and the damage is done. – ohwilleke Sep 5 '18 at 18:59
  • I would like to confirm that injunction relief just means that the disclosing party will issue a cease and desist order to stop the receiving party from continuing any breach. But the disclosing party can't sue the receiving party until both parties go to mediation as outlined in section 13. Is this understanding correct? – philm Sep 5 '18 at 19:34
  • If my above understanding is correct, then it sounds like it is better to leave out the mediation from the paragraph. – philm Sep 5 '18 at 19:54
  • Also, I ma wondering why I have received the -1? I thought that I explained my question clearly. Is there any edits that I can make to better ask the question? – philm Sep 5 '18 at 20:03
  • 1
    This is the most likely reason: law.meta.stackexchange.com/questions/221/… – SJuan76 Sep 5 '18 at 20:45
2

First, it is monumentally unfair (probably unconscionable) to require mediation before seeking injunctive relief. An injunction is sought and granted when there is ongoing and immediate harm by the act or omission that cannot be remedied by damages and requiring people to go through a mediation process is definitely unreasonable and probably unconscionable. A court would likely consider the injunction on its merits irrespective of the mediation clause.

Second, the mediation clause is vague to the point of uselessness. What rules of mediation will be used? Who will the mediator be or how will they be appointed? What if one of the parties is in Antarctica and the other in Finland - where is "reasonably convenient"? What time frame must the mediation be started/completed within? You really don't want to have to go to court just to find out what your dispute resolution clause actually means.

Third, don't mix dispute resolution in with your choice of law clause - they are different things and deserve their own clause.

Fourth, if we disagree about anything the only thing we can do is appoint a mediator? We can't for example, talk it out?

Fifth, there are no damages payable for "irreparable injury" - it is, by definition "irreparable" and as such, damages will not repair it.

When drafting your contract:

  1. Say what you mean and only what you mean.
  2. Be clear and precise. If you lay out a procedure then it should be algorithmic - definitive, step-by-step which will arrive at a result within a specified time and ideally, be set out so clearly a child could follow it.

For example:

Disputes

  1. Either party may notify the other of a dispute in writing.
  2. Within 7 days of the notice, the parties will confer at least once in a good faith effort to resolve the dispute.
  3. If the dispute remains unresolved after 14 days, the dispute shall be mediated by a mediator appointed by X [dispute resolution peak body] in accordance with their rules in Dayton, Ohio. Such mediation to occur within 21 days of referral to X.
  4. Should the dispute remain unresolved either party shall have recourse to the non-exclusive jurisdiction of the Ohio courts.
  5. Notwithstanding this clause, either party may seek injunctive relief.
  • Wow, thank you very much for your feedback! This is very useful and I appreciate it very much. There will be alot of changes in the contract in light of this – philm Sep 6 '18 at 14:22
  • Also, I should note that the mediation before the injuction relief was removed from the contract. – philm Sep 6 '18 at 14:25

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