Document type: Toolkit Practice area: Litigation — Arbitration Jurisdiction: United States (federal) Last reviewed: 5 September 2026

Everything here is built on one principle: provisions that make mass arbitration orderly have been enforced; provisions that make it unavailable have not. Read the drafting notes; they explain which side of that line each provision sits on.

1. Complete dispute resolution article

SECTION __ — DISPUTE RESOLUTION

__.1 INFORMAL RESOLUTION (REQUIRED FIRST STEP)

(a) Before commencing arbitration or a small claims action,
you and we agree to attempt to resolve the dispute informally.

(b) Notice. The party raising the dispute must send a written
Notice of Dispute containing: (i) the individual's full name,
mailing address, email address, and telephone number; (ii) the
account identifier or order number at issue; (iii) a description
of the dispute; (iv) the specific relief sought and how it was
calculated; and (v) the individual's personal signature. A
Notice signed only by counsel, or a notice covering more than
one individual, does not satisfy this Section.

(c) Where to send. To us: [address / portal]. To you: the email
address associated with your account.

(d) Negotiation period. For sixty (60) days after receipt, the
parties will attempt in good faith to resolve the dispute. If
either party requests, the parties will hold a telephone or
video conference within thirty (30) days, at a mutually
convenient time, attended by the individual and by a
representative of ours with settlement authority.

(e) Tolling. All statutes of limitations and other time-based
defenses are tolled from the date the Notice is received through
the end of the negotiation period.

(f) Condition precedent. Completion of this Section __.1 is a
condition precedent to commencing arbitration. A court or the
arbitrator may enjoin the filing or prosecution of an
arbitration commenced without compliance.

(g) Mutuality. This Section applies equally to disputes we raise
against you.

__.2 ARBITRATION

If the dispute is not resolved under Section __.1, it shall be
resolved by binding individual arbitration administered by
[institution] under its [Consumer Arbitration Rules] and, where
applicable, its [Mass Arbitration Supplementary Rules], in
effect when the demand is filed.

__.3 SMALL CLAIMS ALTERNATIVE

Either party may instead bring an individual claim in a small
claims court with jurisdiction, provided the claim remains
individual and in that court.

__.4 CLASS WAIVER

All disputes shall be resolved individually. The arbitrator may
not consolidate the claims of more than one person and may not
preside over any representative, class, or collective
proceeding. If this Section __.4 is found unenforceable as to
any claim or request for relief, that claim or request shall be
severed and heard in a court of competent jurisdiction, and all
remaining disputes shall be arbitrated individually.

__.5 COORDINATED PROCEEDINGS

(a) Trigger. If twenty-five (25) or more demands raising
substantially similar claims are filed against us by the same
counsel or by coordinated counsel within any ninety (90) day
period, this Section __.5 applies.

(b) Verification. Each demand must state that the named
claimant authorized its filing and must include the claimant's
account identifier. The [institution]'s process arbitrator may
resolve disputes about compliance.

(c) Batching. Demands shall be administered in batches of no
more than fifty (50), assigned in the order the demands were
filed, each batch to a single arbitrator. A new batch shall be
initiated no later than every sixty (60) days until all demands
have been resolved. Batch timing is not subject to either
party's discretion.

(d) Tolling. All limitations periods are tolled for any demand
awaiting assignment to a batch.

(e) Optional bellwethers. The parties may agree that ten (10)
demands — five selected by claimants' counsel and five by us —
proceed first. Within thirty (30) days after the last bellwether
award, the parties shall participate in a global mediation
before a jointly selected mediator. If mediation does not
resolve the remaining demands within sixty (60) days, the
batching procedure in (c) resumes. NO BELLWETHER AWARD SHALL
HAVE ANY PRECLUSIVE OR BINDING EFFECT ON ANY CLAIMANT WHOSE
DEMAND WAS NOT A BELLWETHER.

(f) No stay without a schedule. Nothing in this Section permits
any demand to be stayed indefinitely. Every demand shall be
adjudicated on the schedule set out above unless resolved.

__.6 FEES AND COSTS

(a) We will pay all arbitration filing, administrative, and
arbitrator fees exceeding the amount you would pay to file the
same claim in a court of general jurisdiction where you reside.

(b) Each party bears its own attorney's fees except as provided
by applicable law or Section __.6(c).

(c) The arbitrator may award fees and costs against any party
whose claim or defense the arbitrator finds frivolous or brought
for an improper purpose, applying a standard comparable to
Federal Rule of Civil Procedure 11. This subsection applies
equally to both parties.

__.7 PROCEDURAL PROTECTIONS

(a) The arbitration will be held by video, by telephone, on
documents, or in the county where you reside, at your election.

(b) All remedies available in court, including statutory
damages, punitive damages, and fee-shifting, are available in
arbitration.

(c) No limitations period is shortened by this Section.

(d) The arbitrator shall permit discovery reasonably necessary
to present the claim.

(e) The arbitrator shall issue a written, reasoned award.

(f) Nothing in this Section prevents you from discussing the
facts underlying your dispute.

__.8 OPT-OUT

You may opt out of this Section __ by sending written notice to
[address / email] within thirty (30) days after you first accept
these Terms, stating your name and the account at issue. Opting
out will not affect any other aspect of your relationship with
us.

__.9 GOVERNING STATUTE AND FALLBACK

This Section is governed by the Federal Arbitration Act, 9
U.S.C. §§ 1-16. If a court determines the FAA does not apply,
this Section is governed by the [State] Arbitration Act and
remains fully enforceable.

__.10 SEVERABILITY AND SURVIVAL

If any provision of this Section is unenforceable, the remainder
continues in effect, except that if Section __.4 is
unenforceable the severance rule in Section __.4 applies. This
Section survives termination of your account and of these Terms.

Drafting notes.

§ __.1(b)'s personal-signature requirement is the single most effective provision in this toolkit. It converts a web-form sign-up into an individualized act, and it thins mass filing populations substantially. It has been enforced because it is reasonable, mutual, and does not prevent anyone from arbitrating.

§ __.1(f)'s condition-precedent language matters. Without it, a claimant argues the informal step is aspirational.

§ __.1(g)'s mutuality is not a courtesy. A one-sided pre-arbitration requirement is a substantive unconscionability argument.

§ __.5(c)'s "not subject to either party's discretion" is the sentence that saves the batching provision. Company-controlled timing is the defect courts have identified.

§ __.5(e)'s capitalized final sentence is essential. Bellwether preclusion on non-participants is the provision the Ninth Circuit invalidated, and it took the delegation clause down with it.

§ __.5(f) exists to be quoted back at you — favorably. It states affirmatively that nothing here permits an indefinite stay, which is the first thing a court reviewing the protocol will look for.

§ __.6(a)'s "exceeding what you would pay to file in court" formulation tracks what Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79 (2000) and the consumer protocols contemplate, and it is easier to apply than a fixed dollar figure.

§ __.7 as a block is the unconscionability answer. Each subsection responds to an argument that has succeeded somewhere.

§ __.8's opt-out must be honored. Keep the records. Opt-out rates are consistently negligible and the provision's value in litigation is considerable.

What is deliberately absent: any indefinite stay, any company discretion over timing, any preclusion of absent claimants, any fee imposed on claimants beyond a court filing fee, and any attempt to make the process unavailable.

2. Claimant-matching declaration

DECLARATION OF [NAME] REGARDING CLAIMANT VERIFICATION

I, [Name], declare:

1. I am [title] at [Company]. I am responsible for [the customer
data platform / billing systems / identity resolution]. I make
this declaration from personal knowledge and from Company
records maintained in the ordinary course.

2. THE CLAIMANT LIST
   On [date] I received a list of [N] individuals identified in
   demands filed with [institution] (the "List"), containing
   [fields].

3. METHODOLOGY
   3.1 I matched each row of the List against Company account
       records using [email (exact and normalized), telephone
       (E.164 normalized), name plus postal code, and account
       identifier where supplied].
   3.2 Where a row matched more than one account, I [describe
       the resolution rule].
   3.3 Where a row matched no account on any identifier, I
       classified it "unmatched."
   3.4 I identified duplicates by [rule].
   3.5 For each matched account, I retrieved: account creation
       date, charge history at the transaction level, the Terms
       version accepted and the acceptance date, and the
       interface version presented at acceptance.

4. RESULTS
   Total rows on the List:                        [N]
   Duplicate rows:                                [n1]
   Unique individuals:                            [n2]
   Matched to an account:                         [n3]
   Matched with at least one charge:              [n4]
   Matched with no charge ever:                   [n5]
   Unmatched on any identifier:                   [n6]
   Matched, charges outside the claim period:     [n7]

5. LIMITATIONS
   [State them. A declaration that claims perfection is less
   credible than one that explains where the method is
   imprecise. Include any system the query could not reach.]

6. EXHIBITS
   Exhibit A: the List as received.
   Exhibit B: the match results, by row, with the category
   assigned and the identifier that produced the match.
   Exhibit C: the query definitions.

I declare under penalty of perjury that the foregoing is true
and correct.

Drafting notes.

Paragraph 5 is what makes this persuasive. A declaration acknowledging that the method cannot resolve, say, accounts created with a since-deleted email is more credible than one that does not, and opposing counsel will find the limitation anyway.

Paragraph 3 must be reproducible. The other side may run its own analysis; a methodology that cannot be described cannot be defended.

Do not overclaim. "Unmatched" means unmatched on the identifiers supplied, not "not a customer." Say that.

3. Process arbitrator submission — outline

SUBMISSION OF RESPONDENT REGARDING ADMINISTRATIVE MATTERS
[Institution] — Mass Arbitration No. ____

I.   INTRODUCTION AND WHAT RESPONDENT DOES NOT DISPUTE
     [Open by conceding. "Respondent does not dispute that
     [n4] of the demands were filed by identified account
     holders and are properly before the [institution]."
     Credibility on the rest depends on this paragraph.]

II.  THE DEMANDS THAT DO NOT SATISFY THE FILING REQUIREMENTS
     A. Duplicates ([n1])
     B. Demands with no matching account ([n6])
     C. Demands from accounts never charged ([n5])
     [Cite the verification declaration and Exhibit B.]

III. THE CONTRACTUAL CONDITION PRECEDENT
     A. Section __.1 requires individualized, signed notice
     B. The notice served was a single letter listing [N] names
     C. Requested relief: a stay of [n] demands for [60] days
        to permit compliance, with tolling as the clause
        provides
     [Ask for a stay, not dismissal.]

IV.  PROPOSED SEQUENCING
     A. Batching under Section __.5(c), beginning [date]
     B. Proposed batch composition and calendar
     C. Proposed bellwether process, if the parties agree

V.   FEE ALLOCATION
     [Under the applicable mass arbitration fee schedule.]

VI.  CONCLUSION

Drafting notes.

Section I is the most important part of the submission. A respondent that contests everything is treated as contesting nothing.

Section III requests a stay because a stay works better than dismissal. Claimants who will not complete an individualized notice fall away; claimants who will were going to arbitrate anyway.

Do not include a section arguing that mass arbitration is improper. It is not, and including it undermines Sections II and III.

Assume a district judge reads this. Every process arbitrator submission ends up as an exhibit somewhere.

4. Settlement segmentation worksheet

MATTER: ______________  DATE: ________  PREPARED BY: ________

TOTAL DEMANDS FILED:                              ______

TIER 4 — Administrative
  Duplicates                                      ______
  Unmatched                                       ______
  No account / never charged                      ______
  Failed condition precedent (after stay)         ______
  SUBTOTAL — contest administratively             ______
  Target resolution: $0

TIER 3 — Weak
  Charges outside the claim period                ______
  Outside the limitations period                  ______
  Claimant conduct defeats the claim              ______
  SUBTOTAL                                        ______
  Target resolution per claim: $______

TIER 2 — Defensible
  Verified, charged, defect not present in the
  interface version or jurisdiction               ______
  SUBTOTAL                                        ______
  Target: bellwether, then nuisance value $______

TIER 1 — Meritorious
  Verified, charged, defect present for that
  user's period, interface, and jurisdiction      ______
  SUBTOTAL                                        ______
  Target: full remedy + statutory increment $_____
  RESOLVE FIRST.

EXPOSURE MODEL
  Tier 1 count × target                     $__________
  Tier 2 count × target                     $__________
  Tier 3 count × target                     $__________
  Institutional fees (projected)            $__________
  Defense costs (projected)                 $__________
  Bellwether costs                          $__________
  TOTAL PROJECTED                           $__________
  RESERVE RECOMMENDED                       $__________

PRODUCT FIX REQUIRED?   [ ] Yes  [ ] No
  Description: _______________________________________
  Owner: ____________________  Target date: __________

Drafting notes.

Tier 1 is resolved first and paid properly. It is the cheapest resolution available, and it removes both the strongest claims and the campaign's moral force.

The product fix line is not decorative. A settlement without a fix guarantees a second campaign against a population that keeps growing.

Do not set a blended number before segmenting. That is the mistake that overpays Tiers 3 and 4 by a multiple.

5. IDR intake script and log schema

Script outline for the conference required by § __.1(d):

1. Confirm identity and account.
2. "I've reviewed your notice. Let me make sure I understand
   what happened." — restate the dispute in the claimant's terms.
3. Confirm the facts against the account record: dates,
   charges, interface version, prior contacts.
4. Explain what the record shows, plainly, without argument.
5. If the claim is within a Tier 1 pattern: make the offer.
   [Pre-delegated authority tier ___.]
6. If not: explain why, and state what the claimant can do next
   — arbitration, small claims, or providing more information.
7. Confirm next steps in writing within two business days.
8. Log everything.

Log schema:

notice_id, claimant_name, account_id, notice_received_date,
notice_complete (Y/N), missing_elements, first_contact_date,
contact_attempts (n), conference_scheduled_date,
conference_held_date, conference_duration_min,
claim_category, tier_assigned, offer_made (Y/N), offer_amount,
outcome (resolved / not resolved / no response),
resolution_date, resolution_amount, written_confirmation_sent,
notes

Drafting notes.

The log is evidence. In a later unconscionability challenge, a company that can show 2,700 conferences held and 1,900 disputes resolved is in a different position from one that can show 2,700 form emails. Build the log before you need it.

Step 4 matters more than it looks. Claimants who receive a plain explanation of what the record shows frequently withdraw, and those who do not at least understand the dispute better.

Pre-delegate authority in tiers so the representative can resolve on the call. A conference that ends with "I'll have to check" resolves nothing and costs the same.

6. Litigation hold notice — mass arbitration

CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGED
LEGAL HOLD NOTICE — [Matter Name]

You are receiving this because you may have documents relevant
to a legal matter. You must preserve them. Do not delete,
modify, or dispose of anything described below.

WHAT THIS IS ABOUT
[Neutral, one paragraph.]

WHAT TO PRESERVE
1. All versions of the Terms of Service and any consumer-facing
   agreement in effect from [date] to present, including drafts.
2. All front-end code, design files, and screenshots showing the
   [registration / checkout / renewal / cancellation] flows for
   that period, on every platform.
3. Terms acceptance logs and the systems that generate them.
4. All billing and transaction records for the period.
5. All customer support tickets, chat logs, call recordings, and
   internal notes referencing [the practice at issue].
6. All internal communications — email, chat, documents,
   tickets — discussing [the practice], its disclosure, its
   testing, complaints about it, or proposed changes to it.
7. All A/B test results, user research, and analytics relating
   to the flows in item 2.
8. All communications with [institution] and with claimants.
9. Marketing materials describing [the practice].
10. Vendor communications relating to [billing processor,
    analytics, consent management].

SUSPEND
Automatic deletion, retention schedules, and disposal for all
custodians and systems listed above.

SCOPE NOTE
This hold is drafted broadly and covers materials relevant both
to the pending arbitration demands and to any related
proceeding, including any court action.

QUESTIONS
Contact [name] at [contact]. Do not discuss this notice outside
Legal.

ACKNOWLEDGE receipt at [link] within 3 business days.

Drafting notes.

Item 7 is the one people forget and the one that matters most in a disclosure case. A/B test results showing that a variant reduced cancellations by making the flow harder are the most consequential documents in the matter, and they will be found.

The scope note is deliberate. If the arbitration clause is later held unenforceable as to any group, a class action follows, and a hold scoped only to arbitration will look narrow in hindsight.

7. Tabletop exercise agenda

MASS ARBITRATION TABLETOP — ONE DAY
Participants: Legal, Data, Product, Support, Finance,
outside counsel

PRE-WORK
  Synthetic claimant list, 5,000 rows, including:
  - 400 duplicates
  - 600 individuals with no account
  - 300 accounts never charged
  - 500 users from the [acquired business] legacy system
  - realistic identifier noise (typos, old emails, nicknames)

09:00  Scenario briefing
09:15  THE MATCH — Data team runs it live. Time it.
       Output: four-tier segmentation.
10:45  TERMS MAPPING — which version applied to whom?
       Can we produce the interface rendering for each date?
       Who is the declarant? Is the backup identified?
12:00  Lunch
12:45  CONDITIONS PRECEDENT — what does our clause require?
       Did the hypothetical claimants comply?
       Did WE comply? Pull the last 12 months of IDR logs.
14:00  DRAFT — first two pages of a process arbitrator
       submission. Do we have the facts to support it?
15:00  SEGMENT AND RESERVE — Tier 1 count and target;
       total exposure range for the board.
16:00  GAPS — list every one. Owner and date for each.
16:45  Close

EXPECTED FINDINGS (most organizations)
  - A legacy system nobody can query
  - Interface renderings never archived
  - Support has never heard of the IDR provision
  - No named declarant, or the declarant left
  - No pre-delegated settlement authority

8. Quick reference — enforced versus struck down

Provision Status Why
Individualized signed pre-arbitration notice Enforced Reasonable, mutual, does not block arbitration
Negotiation period with conference Enforced Genuinely useful; must be performed
Batching with defined schedule and tolling Enforced Every claim adjudicated
Batching with indefinite stay Struck down Claims have no path
Bellwethers with mediation off-ramp Enforced Non-participants retain their claims
Bellwethers binding absent claimants Struck down No individual adjudication
Small claims carve-out Enforced Pro-consumer
Retroactive amendment after filings Ineffective Applied to accrued claims; evidence of bad faith
Provider protocol with no claimant role Struck down Delegation clause failed with it
Fees on claimants above court filing fee Vulnerable Cost-based unconscionability
Mutual frivolous-filing fee-shifting Enforced Mutual and standard-based
Meaningful, honored opt-out Enforced Answers procedural unconscionability

Related documents

This toolkit is general information, not legal advice, and does not create an attorney-client relationship. Templates require adaptation by counsel to the jurisdiction, the institution's rules, and the specific business.