Arbitration, Mediation and Alternative Dispute Resolution
For many disputes, businesses are finding nonjudicial methods of resolution (including arbitration and mediation) increasingly attractive, as these mechanisms are more cost-effective, less time-consuming and less adversarial than traditional litigation.
In addition to representing parties in arbitrations, mediations and other forms of alternative dispute resolution (ADR), Duane Morris attorneys have experience as third-party neutrals for early case evaluations, as mediators and arbitrators in court-annexed and private proceedings, and in other neutral advisory or decision-making roles.
Appropriate case management seeks the best solutions for a client, and may include consideration of mediation, arbitration, mini-trials and other ADR methods. When cases are better suited for traditional litigation, the Duane Morris team has the resources of hundreds of trial attorneys.
Benefits of ADR
The benefits of mediation, arbitration and alternative dispute resolution derive from their versatility and independence from court bureaucracy. The general concept of ADR has gained wide support among legislatures and courts. Successful ADR programs ensure neutrality, provide a forum for mutual education and encourage the parties themselves, not just their lawyers, to join in the negotiating process. In some instances, ADR may afford quicker resolutions and lower costs than conventional court proceedings.
ADR may be particularly appropriate for clients who must maintain or strengthen business relationships with adversaries. Mediation and conciliation, as opposed to adversarial adjudication, may be especially helpful when there are ongoing business ties between potential litigants. In addition, ADR has the advantage of keeping witnesses off the witness stand, information out of the public record and the terms of a settlement confidential.
ADR also may be particularly well-suited to international disputes, since binding agreements reached in ADR may be enforced more efficiently in different countries than through a judgment in an American court.
Types of Proceedings
In place of courtroom judges, ADR proceedings typically use "neutrals" to guide the parties' own negotiations, render a decision or advise the parties. Many ADR professionals are former judges as well as attorneys or industry experts. Types of proceedings include:
- Arbitration. The parties present their cases to a single arbitrator (or to a panel of arbitrators) who renders a decision that is usually binding and not appealable to a court. Duane Morris attorneys have represented clients in arbitrations conducted under the rules of the American Arbitration Association, the International Centre for Dispute Resolution, JAMS, the International Chamber of Commerce, the International Institute for Conflict Prevention and Resolution (CPR), the rules of specialized associations and under private contractual agreements.
- "High-low" arbitration. The award is guaranteed to be within a specific range. If the arbitrator's award is higher or lower than the agreed range, the difference is disregarded.
- Nonbinding Arbitration. An arbitrator's decision is used as a basis for further negotiation.
- Mediation. Nonbinding mediation before an impartial mediator who is knowledgeable about the subject matter of the dispute is the most common ADR procedure used in recent years. A mediator acts as a facilitator in a series of individual and joint settlement discussions. The decision is nonbinding and parties can terminate the mediation at any time.
- Mini-trials and simulated jury trials. Parties or their attorneys make their cases before a neutral or a simulated jury. No witnesses testify and the rules of evidence are relaxed. An advisory opinion from the "jury" serves as a basis for negotiation.
- Conciliation. In this nonbinding process, a conciliator meets separately with each side and attempts to resolve differences. The parties normally do not meet or face each other in the conciliation process.
- Other Methods. Other alternatives include settlement conferences before retired judges or professional mediators, early case evaluations and partnering, which is a collaborative contracting process focusing on dispute prevention that can be molded to fit the particular needs and resources of the parties.
Range of Services
We assist clients in selecting an appropriate ADR mechanism and drafting the ADR contract provisions, and we represent clients in the ADR process. Our lawyers also serve as neutrals and independent arbitrators and mediators. ADR techniques are used today in settlement negotiations for all types of complex cases.
We handle construction matters using all forms of alternative dispute resolution, including mini-trials, mediations and arbitrations, and we present strategies to attempt to resolve disputes promptly, amicably and short of trial. Our attorneys have considerable experience arbitrating complex, highly technical construction claims, contract and fraud disputes, bid protests, delay, differing site conditions, loss of productivity, extra work and inefficiency claims, as well as error and omission claims, design deficiency claims and a variety of other types of disputes.
Alternative Dispute Resolution in the technology space is highly specialized. Arbitrators, mediators and neutrals must be adept at understanding and translating technical details of emerging and intertwining technology and complex, multilayered implementations and systems. Duane Morris has represented technology clients for decades, advising them on protecting their IP, securing financing, establishing corporate structure, entering and exiting contracts, employment and immigration issues, taxes, and, of course, all forms of litigation, litigation avoidance and dispute resolution.
Our employment and benefits lawyers draft mediation and arbitration clauses for employment contracts and advance client interests in mediation and arbitration proceedings, including employment discrimination claims. On the labor relations side, we represent clients in the collective bargaining process as well as in labor arbitration proceedings.
Commercial Disputes and Products Liability
Lawyers in our commercial litigation group handle ADR proceedings involving other commercial and business disputes, joint venture agreements, licensing agreements and other commercial contracts, products liability claim resolutions, allocation of environmental cleanup liability, loss allocation in toxic tort cases and disputes of intellectual property, to name a few.
Our bankruptcy lawyers serve as examiners, mediators and arbitrators in bankruptcy and insolvency matters.
Duane Morris attorneys are experienced in handling arbitrations under the major international arbitration conventions and rule systems, including the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the International Centre for Dispute Resolution (ICDR), the international affiliate of the American Arbitration Association (AAA), the International Institute for Conflict Prevention and Resolution (CPR), JAMS and the United Nations Commission on International Trade Law (UNCITRAL). We also represent clients involved in arbitration before the Austrian Centre for International Commercial Arbitration, the Dubai International Arbitration Centre, the Federation of Indian Chambers of Commerce and Industry Arbitration and Conciliation Tribunal (FACT), the Korean Commercial Board (KCAB), the Singapore International Arbitration Centre (SIAC) and the Stockholm Chamber of Commerce (SCC). In addition, our attorneys represent clients in international arbitration before specialized providers of arbitration services such as Association Internationale de Droit des Assurances Reinsurance and Insurance Arbitration Society, U.S. (ARIASoUS) as well as the Reinsurance Association of America.
The dispute resolution group consists of lawyers from many of the firm's practice and industry groups across the United States and in the United Kingdom, Singapore and Vietnam. Many of our lawyers perform services as neutrals, mediators, arbitrators and conciliators. Members of our dispute resolution group offer valuable perspectives and experience in the representation of clients in ADR proceedings. The team includes experienced trial attorneys, former corporate general counsel, a former deputy attorney general for the California Department of Justice, a Fellow in the College of Commercial Arbitrators, as well as members of the American Arbitration Association (AAA) who are listed as AAA mediators. Others have been active in publishing articles and instructional materials about ADR. All of our lawyers are oriented toward resolving disputes, rather than perpetuating them.
Duane Morris is a sustaining member of the International Institute for Conflict Prevention and Resolution (CPR), a nonprofit initiative of 500 general counsel of major national and international corporations, law firms and prominent legal academics supporting private alternatives to the high costs of litigation.