In Mediations, David combines facilitative with evaluative (and transformative) techniques to help counsel and the parties resolve disputes, digging in deeply to learn the case, treating counsel and the parties with the utmost respect, searching for solutions based on carefully listening to and probing the parties and aided by many years of experience.
David’s specialized expertise includes complex commercial litigation, insurance coverage disputes, insurer insolvency, securities, corporate governance, product liability and mass torts, contract and fraud claims. In his 39-plus years of law practice and service as a neutral, he has had extensive experience across a variety of industries, including the financial services and insurance industries, beer, spirits and wine industries, automobile and motorcycle industries and the pharmaceutical industry.
In Arbitrations, David treats all participants with respect, thoroughly learns his cases and is a good listener. Here as well, he applies his wealth of experience as a litigator, law professor and neutral under the relevant arbitration rules, applicable law and facts.
Again, David's specialized expertise from his multiple decades of litigation and service as a neutral includes complex commercial litigation, insurance coverage disputes, insurer insolvency, securities, corporate governance, product liability and mass torts, contract, fraud and dealer termination claims, with extensive experience across many industries, including financial services and insurance, alcohol beverages, automobiles, motorcycles and pharmaceuticals.
The same approach applies to the Special Master role, where he is available to resolve e-discovery, privilege and other disputes and to help settle large scale litigation. For example, as a discovery Special Master, he can help the parties resolve disputes over privileged documents without, in most cases, the trial judge ever having to review the subject documents. This removes burden from the trial judge while also insulating the judge from exposure to the substance of privileged documents. Similarly, David can work with the parties through the details of resolving e-discovery and other discovery issues that would take many hours that the presiding Judge simply does not have readily available.
And, of course, David can be available when asked to assist the parties in settling their dispute.
Whether its Mediation, Arbitration or retaining a Special Master, alternative dispute resolution is, or at least should be, all about the parties themselves exercising greater control over the resolution of their dispute, the mechanics and costs, and its outcome. You drive the bus.
Mediation gives the parties ultimate control: over the choice of mediator, over the procedural steps and, most significantly, over the outcome. If the parties truly invest the effort and truly are willing to reach a compromise resolution that they themselves completely control, mediations should almost always be successful. As a mediator, I try my best to get the parties to a place where they can most effectively exercise that control by exploring the range of choices and alternatives and providing some neutral perspectives that are often absent in the heat of litigation.
Arbitration gives the parties a large amount of control over the process. The parties can choose the rules, the forum, the law, the procedures for pre-hearing, hearing and post-hearing, and depending on the arbitral rules chosen, can choose one arbitrator of a tripartite panel and have input into the selection of the panel chair/umpire or input into the selection of a single arbitrator or arbitration panel by a "strike and rank" system or even by agreeing directly with the other side on a well respected arbitrator that both sides can trust. The parties can also use arbitration to control costs and bring about quicker resolution: by limiting discovery, by proposing resolution through motions, by limiting the amount of time for testimonial evidence at the hearing, by agreeing to rules with time limits for party and arbitrator actions, by using only a single arbitrator or, even in a tripartite panel arbitration, agreeing with the other side, after proceedings get underway and comfort develops with the chair/ umpire or another particular arbitrator, to empower only that single arbitrator to resolve either the entire case or all pre-hearing issues or one particular issue such as damages. If the parties want an appeal, an appeal panel with a mandate for expedited resolution, can be agreed as part of the process in most major arbitral organizations. The parties can even act to exercise some control on outcome by agreeing to variants of "high/low" or "baseball arbitration."
Utilizing a Special Master for discovery can also add control and reduce costs by allowing for immediate or near immediate, real-time resolution of issues by a trusted and experienced neutral who can devote the time to work with the parties toward consensual resolutions and quickly decide issues around which consent is not possible. Large numbers of sensitive documents can be reviewed quickly by a neutral without the necessity of involving the Judge.
Finally, the degree of control that these alternative dispute resolution methods can give parties to a dispute is also demonstrated by the use of these methods in combination. I have mediated to resolution a number of disputes that were in arbitration, and have served on arbitration panels where the parties engaged a mediator to resolve the dispute. While serving as a Special Master, parties have asked me to also serve as their Mediator to help them resolve their case entirely. Parties at the outset of a dispute can agree to a Med-Arb procedure in which a neutral will conduct a mediation to help them try to resolve the case, but if they cannot agree on a resolution, that neutral (or another) will resolve the dispute as the Arbitrator. Similarly, the parties can agree to an Arb-Med procedure in which the parties fully arbitrate a dispute before an Arbitrator, so that the parties can see how the evidence was presented by both sides, but the Arbitrator after writing the Award will delay issuing it, as that arbitrator (or another chosen neutral) attempts to bring about a mediated resolution.
All of these procedures can be used to speed resolution, reduce costs and maximize control over the procedure and outcome. I would be pleased to discuss any or all of them with you.
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