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In the face of possible litigation, counsel’s decision whether to invoke an arbitration or mediation clause typically involves a complex consideration of cost, timing, fairness, contractual obligations, impact on the desired outcome, the ability to prevail against the other party, and reputational effects on business and consumers. Counsel often consider how customers, investors, and potential business partners may react to public information. However, businesses too often overlook another factor in deciding to opt for alternative dispute resolution (ADR) or court.

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