Arbitration involves tradeoffs. In deciding to arbitrate, a party is severely limiting appellate rights, waiving a trial by jury, and eliminating the formalities that the courts have developed. In return, they should get a more focused, speedier and less expensive resolution. As an arbitrator, I am committed to doing all I can to make sure that the arbitration process justifies those tradeoffs.
Obviously, my most important role is to render an award that applies the law to the credible facts presented in the proceeding. As a trial lawyer, with over forty years of litigation experience, and extensive experience in commercial and financial services arbitrations, I recognize that obligation as an arbitrator’s basic duty.
I believe it is also important, however, for the arbitrator to encourage the parties to use the flexibility of arbitration to get the benefits that the process offers. That responsibility starts with me. I set hearing dates during the preliminary conference and, absent unusual circumstances, hold to those dates. Since I am no longer a working trial lawyer, I do not have a personal trial schedule that can get in the way of the proceedings or delay my award. I work hard with the parties in the initial conference to anticipate disputes that may arise along the way and to find ways to avoid them; if discovery issues or other potential delays arise, I try to resolve them with a phone conference to avoid lengthy briefing schedules and the attendant costs. Finally, I encourage the parties, where possible, to be creative in shortening the time for presenting the case. One of the major benefits of arbitration is that the rules of evidence, the order of witnesses, and formalities of court do not apply in arbitration; the parties should take advantage of the options these differences provide.
While these techniques work in most cases, they are particularly effective in complex commercial matters. I know, as a former trial lawyer, that much of the litigation-based presentation in those cases has to move slowly and that the costs of discovery can overwhelm the lawyers, parties, and court. Since I am the former chair of a firm’s EDiscovery group and a Fellow of the American College of e-Neutrals, I can be particularly effective in cutting through issues raised by the production of masses of electronically stored information.
I have served as an arbitrator in multiple single arbitrator and multi-arbitrator matters, including matters concerning the termination of franchises for non-payment of royalties and other alleged defaults under the franchise agreement, with defenses of fraud, coercion, violations of obligations of good faith and fair dealing, and statutory violations; valuation of fire damage to vessel; contract for the provision of transportation services; breach of equipment supply contract; lack of investment suitability and churning; transportation services contract; and termination of entertainment contract. Appeared as an advocate in arbitrations before the American Arbitration Association on issues related to distribution contracts and relationships, before the NASD (predecessor of FINRA) on issues related to breach of fiduciary duty and the suitability of investments, and before private panels related to various business disputes and valuations.
I am a panel member of FINRA, the American Arbitration Association, and the American Health Lawyers Association.