Arbitrator and mediator for complex business and employment disputes
Rob Harris works with attorneys and their clients to arbitrate and mediate complex and challenging business and employment disputes, often (but certainly not always) in the financial services arena.
He has particular experience with disputes between owners, principals, and senior executives of hedge funds, private equity firms, and other asset management companies.
Within the investment management and financial services industries, Rob regularly arbitrates and mediates disputes involving:
Ownership transitions and business divorces involving private equity and hedge funds, asset managers and principals
Employment and compensation disputes for senior executives and profit-sharing arrangements
Non-compete and non-solicitation enforcement
Breaches of fiduciary duties and usurpation of opportunities
Complex carried interest and waterfall calculations
Management succession and control issues
Mergers, acquisitions, and joint venture disputes
Fundraising, placement agents and capital markets
From the newsletter
Commentary on arbitration and mediation developments, updated regularly.
Please know that you did a spectacular job mediating the dispute. My client was very appreciative of your efforts, and I am convinced it was your personal involvement in this matter that allowed the parties to resolve their dispute by agreement.
Counsel to a mediation party
Profile
Rob spent over two decades as a commercial litigator, followed by senior in-house counsel roles for financial services companies, including a multinational hedge fund administrator servicing some of the industry’s largest and most complex investment funds and asset managers, where he served as General Counsel, Chief Administrative Officer and was part of the senior management team that took the company from startup to successful exit.
After living both sides of the corporate dynamic — as a senior executive with contractual rights, equity interests, and employment obligations, and as the lawyer responsible for managing those very issues for others — Rob brings an understanding of the commercial realities, relationship dynamics, and reputational concerns that drive these disputes.
Having served as a neutral for many years, Rob’s ADR work encompasses areas well beyond financial services. A list of matters where he has been asked in recent years to serve as an arbitrator or mediator is available here.
Organizational involvement and credentials
American Arbitration Association
Arbitrator and mediator with the AAA for more than two decades, serving on its general Commercial, Employment, Construction, Consumer and Finance panels, plus two specialty panels: Large Complex Cases, and Mergers and Acquisitions and Joint Ventures.
Member, AAA-ICDR Financial Services Advisory Committee, concerned with shaping best practices for the resolution of financial industry disputes.
National Academy of Distinguished Neutrals
Diplomate Member. NADN is an invitation-only association of experienced mediators and arbitrators, recognized through peer nomination and vetting by the litigation community in each state for hands-on skill in civil and commercial dispute resolution.
ACT-ADR
Fellow, Association of Commercial and Transactional ADR Professionals. ACT-ADR is a nonprofit association of dispute resolution and prevention professionals with hands-on operational experience in business, transactional, and financial matters.
FINRA neutral
Member of FINRA’s mediation and arbitration panels.
Professional recognition
Recipient, Honorable Robert C. Zampano Award for Excellence in Mediation
Best Lawyers in America (Mediation)
AV Rated by Martindale Hubbell
Former Chair, Connecticut Bar Association Alternative Dispute Resolution Section
A composite list of recent matters (2021–2025) where Rob has been asked to serve as an arbitrator or mediator, organized by industry and dispute type.
Newsletter
Quarterly commentary on arbitration and mediation developments, practice notes, and reflections from the neutral’s chair.
Recent publications
Training
Continuing education and conference participation in arbitration and mediation practice, 1999–present.
Feedback
Unsolicited comments from attorneys and their clients following recent arbitrations and mediations.
var newsletters = [
{
“title”: “When Mediations Go Sideways: A Playbook for the Whole Room”,
“date”: “July 2026”,
“body”: [
“Every mediator has lived through some version of the same afternoon.”,
“The lawyers have prepared. The parties have authority. The dispute is one that should settle.”,
“Yet hours pass. Movement stalls. Everyone in the room starts quietly calculating whether they should have blocked the whole day.”,
“The problem is rarely the case.”,
“It is the people.”,
“Not because they are acting unreasonably. Not because they are in bad faith. But because someone in the room—sometimes one person, sometimes several—has become an obstacle to productive negotiation. Recognizing who that is, understanding why, and finding a path forward: that is when the real work begins.”,
“I want to share some observations about how that work actually unfolds—and why, in my experience, it almost never unfolds through the mediator’s efforts alone.”,
“Mediation is a team sport. The lawyers in the room are the people who make resolution possible. They know the case. They know their clients. They know what has been tried and what has not.”,
“The best lawyers I work with do not simply follow the mediator’s lead—they anticipate, prepare, and actively steer. Their instincts about when to push and when to hold, when to talk and when to be silent, are exceedingly beneficial in a contentious mediation.”,
“With that preamble, here are four scenarios that arise regularly, and how counsel, parties, and the mediator can work through them together.”,
“But first: a principle that runs through all four.”,
“Difficult behavior in mediation is almost never random. A business executive may be managing internal politics that nobody else in the room fully understands. A principal may still be carrying the emotional weight of what felt like a personal betrayal. A lawyer may be responding to client pressure that was never communicated to the mediator. The behavior may present serious obstacles to settlement, but it usually has a source. Understanding that source—before reacting to the conduct—is usually the most productive first step.”,
“__H__Scenario One: When the Client Is the Obstacle”,
“In many mediations, both attorneys—and one party—very much desire to reach resolution. The other party, however, is stubbornly intransigent.”,
“Perhaps it is the founder who built the business and feels personally wronged. Perhaps it is a senior executive managing internal pressures that nobody else in the room fully understands. Perhaps it is a first-time mediation participant who believes this is simply another forum in which to win.”,
“Whatever the source, the difficult party’s attorney almost always knows there is a problem before the mediator does. However, the attorney cannot always solve it without mediator help. Sometimes their proximity to the client makes it harder, not easier, to have the necessary conversation.”,
“A private meeting with both lawyer and client together is usually the right starting point. Does the client understand the realistic range of litigation outcomes? Has anyone had a candid conversation about what happens if settlement is not achieved today?”,
“But sometimes the issue runs deeper. The obstacle is not information. It is emotion. A party who feels disrespected or ignored will not be moved by additional legal analysis. What moves people is feeling genuinely heard—and then, gradually, being redirected toward practical consequences.”,
“This is where counsel’s candor with the mediator is invaluable. The most helpful lawyers in these situations are the ones who share what the client actually fears, what issues carry emotional significance, what interests have never appeared in a demand letter or mediation statement. That information changes how the mediator engages, and often determines whether the conversation goes anywhere.”,
“The advocates who prepare their clients not just with arguments but with realistic expectations tend to reach resolution more often. They understand that mediation’s goal is to extricate the parties from a problem, not to declare a winner—and they have communicated that to their clients before anyone walks in the door.”,
“__I__Takeaway: When a client is the obstacle, the most valuable thing counsel can do is educate the mediator. The lawyers know their clients. When they trust the mediator with that knowledge, the mediation process benefits.”,
“__H__Scenario Two: When Both Clients Are the Obstacle”,
“The most difficult situation arises when the lawyers are doing everything right and both parties remain deeply entrenched.”,
“These cases often involve history. Former business partners. Long-term commercial relationships. Family businesses. Joint ventures that began with optimism and ended badly. The dispute may be framed in terms of dollars, but the real conflict often extends beyond money.”,
“In these matters, joint sessions are usually counterproductive. Time with each side separately is essential. What happened? Why does it matter? What would resolution actually look like? What would the other side need to understand in order for this to resolve?”,
“The answers are often surprising. Many parties who appear miles apart on the surface are actually much closer economically than anyone realizes. The hostility masks interests that are quietly compatible.”,
“One party wants acknowledgment. Another wants closure. One wants to preserve reputation. Another wants certainty. None of those interests may appear in the formal settlement demands, yet they may be the real drivers of the negotiation.”,
“Once those interests are identified, opportunities emerge. Perhaps a carefully managed joint session is appropriate; perhaps not. The specific intervention matters less than the principle: in emotionally charged disputes, the visible obstacle is rarely the real one.”,
“The attorneys play a central role here—both in helping the mediator understand what is actually at stake and in preparing clients for the kind of conversation that can unlock resolution. The lawyers who have prepared their clients to understand not just their legal position but their genuine interests, create the conditions for settlement. The mediator can then find the path. But the groundwork is theirs.”,
“__I__Takeaway: In disputes rooted in relationship and history, the numbers are often the last problem to solve. The lawyers who understand what their clients actually need — not just what they are demanding — put the mediator in a position to find the resolution neither party could reach alone.”,
“__H__Scenario Three: When One Attorney Becomes the Obstacle”,
“In some mediations, the client may be prepared to negotiate, but the attorney is not.”,
“Some attorneys approach mediation as if it were litigation—every conversation provides another opportunity to argue the merits. Others use mediation primarily as an information-gathering exercise—an opportunity for free discovery—with little genuine interest in resolution. Still others may be pursuing a strategy that may conform to what their client says they want, but diverges from the client’s real and unarticulated interests.”,
“None of this reflects bad lawyering. It usually reflects something else: client pressure, skepticism about the likelihood of settlement, professional habit, or concern about how settlement will be perceived.”,
“A private conversation with counsel is usually the right starting point. Not a confrontation. A conversation. What is really preventing progress? What does counsel believe the client needs? What risks does the lawyer see that have not yet surfaced?”,
“Those discussions frequently reveal that the positions being presented publicly differ substantially from the realities being discussed privately. One question tends to be particularly productive: “What does your client actually need in order to resolve this dispute?” Asked in private, the answer is often quite different from what has been communicated across the table.”,
“Direct mediator engagement with the client, while counsel remains fully involved, enables the client to share their own perspective. Business clients often appreciate that opportunity. Many have been listening to lawyers discuss the case for months, and want to communicate their own views as to what outcome would allow them to move on.”,
“Opposing counsel has a meaningful role here as well. When one lawyer appears to be a source of difficulty, the mediation has a better chance of succeeding if the other lawyer refrains from matching aggression with aggression. Restraint—small concessions, constructive framing, a visible focus on problem-solving—can gradually make continued rigidity harder to sustain. I have watched skilled opposing counsel do more to unlock a stalled mediation than any intervention a mediator could have made.”,
“__I__Takeaway: When counsel becomes the obstacle, the most productive question is usually not “what is this lawyer doing” but “what is this lawyer responding to.” Opposing counsel who can answer that question — and respond with de-escalation — often do more to move the case than the mediator.”,
“__H__Scenario Four: When Both Attorneys Are the Obstacle”,
“Occasionally the difficulty is not one lawyer. It is both.”,
“Neither side wants to move first. Every concession is viewed through the lens of litigation strategy. Every communication is filtered through concern about how it will be perceived. The clients watch while settlement opportunities drift away.”,
“Lawyers understandably feel pressure to project confidence in front of clients. What reads as intractability is frequently just caution about being seen to blink first.”,
“One of the most reliable ways to break that dynamic is also one of the simplest: get the lawyers together without their clients. The conversation often changes immediately. Remove the audience, and the exchange becomes more realistic. Positions that seemed fixed become discussable. Issues that seemed impossible to raise get raised.”,
“A joint session involving only counsel and the mediator is more of a problem-solving exercise than a negotiation. What are the real obstacles? Where do the actual settlement ranges lie? What would a workable resolution look like? Once lawyers begin discussing solutions rather than positions, progress frequently follows.”,
“Sometimes what surfaces is that the difficulty is not the particular case itself. It is the relationship between counsel. Commercial litigators spend careers crossing paths with one another. While familiarity often is conducive to a positive mediation, on occasion those relationships carry friction that is not helpful.”,
“The lawyers who are most effective in these circumstances tend to be the ones willing to take the first private step. (Ironically, the attorney who moves first usually creates more value for the client than the one who holds out the longest.)”,
“__I__Takeaway: Mediation rewards problem-solvers, not performers. When both sides are locked, a frank conversation between counsel often accomplishes in twenty minutes what hours of positional bargaining could not.”,
“__H__Tools That Work Across Every Scenario”,
“Certain things prove useful regardless of who is creating the difficulty.”,
“Pre-mediation calls are worth more than many participants realize. They give the mediator a chance to surface potential problems before anyone enters the room, understand the personalities involved, and build the credibility that makes later interventions more effective. Counsel who use that time to share context—not just legal position—are investing in the mediation before it begins.”,
“And sometimes the most productive thing to do is stop. An adjournment—living to mediate another day—can accomplish what continued negotiation cannot. Time allows clients to reflect, lawyers to recalibrate, and emotions to cool. What appears impossible at five o’clock sometimes becomes entirely achievable a week later.”
]
},
{
“title”: “The Fisherman’s Way: Resolving Business Disputes Before They Spoil”,
“date”: “April 2026”,
“body”: [
“Before the Federal Arbitration Act was adopted in 1925, courts often refused to enforce agreements requiring parties to arbitrate future disputes. Judges frequently viewed arbitration provisions as improper attempts to bypass judicial authority. Even if parties contractually had agreed to arbitrate, the agreement might be ignored once a dispute reached the courthouse.”,
“The statute changed that. Arbitration agreements became enforceable. Parties who agreed in advance to resolve disputes privately could rely on courts to honor that decision.”,
“Yet arbitration itself did not begin in 1925.”,
“Long before legislatures and arbitration institutions existed, businesspeople were resolving disputes outside the courts in a simpler way: they chose someone they trusted and asked that person to decide. No rules. No institution. No clause required. Just two parties, a disagreement, and a neutral they could agree on.”,
“I was introduced to that idea in law school—not through a statute, but through a story.”,
“Two parties in the fish business had a dispute about whether a fisherman was obligated to sell his daily catch exclusively to a particular market customer. The issue mattered—but the real challenge was timing. Mackerel doesn’t age well.”,
“So, the parties did something practical: they asked someone they both trusted to decide the issue on the spot.”,
“That story stuck with me because it captures arbitration at its most intuitive. Strip away the doctrine and the procedure, and arbitration is simply this: choosing a decisionmaker you trust, on a timeline that makes sense for your business. Whether in the fish market or somewhere else, when the formal legal system can’t deliver a timely answer, practical people find a better way.”,
“Fast forward to today. Most business arbitrations begin the same way: with a clause drafted months or years before the dispute, at a time when the parties are focused on doing business together, not on conflict. When a dispute later erupts, arbitration happens because the contract requires it.”,
“What happens far less often is the reverse. Two businesses find themselves in an active dispute. The contract contains no arbitration clause. Litigation looms—or has already begun. And yet, despite the absence of any contractual obligation, the parties voluntarily agree to arbitrate. Or not.”,
“Why is that scenario so rare?”,
“Several factors contribute to the rarity of arbitration agreements reached after a dispute has begun. None of them is irrational. But together they create a powerful default toward litigation.”,
“__H__1. Not Everyone Likes Arbitration”,
“Some lawyers worry about limited appellate review. Others are concerned about inconsistent outcomes or unfamiliar procedures. Many attorneys are simply more comfortable with the structure and predictability of court litigation.”,
“These concerns are understandable. Arbitration is not a perfect process, and it is not appropriate for every dispute.”,
“But skepticism alone does not explain why arbitration is almost never discussed once litigation becomes the presumptive path.”,
“__H__2. It Takes Two to Tango”,
“Arbitration by agreement requires mutual consent. One party’s enthusiasm is meaningless without the other’s. And once a party believes it has an advantage in court—procedural leverage, discovery pressure, delay—there is little incentive to give that up voluntarily. That is rational. It may also sometimes be shortsighted.”,
“__H__3. The Dominant Reason: No One Asks”,
“Perhaps the most common reason post-dispute arbitration does not happen is simpler and more human: nobody suggests it.”,
“A dispute arises. Counsel are retained. Pleadings are drafted. Litigation begins. Arbitration never enters the conversation—not because it was considered and rejected, but because it was never considered at all.”,
“Once the litigation train leaves the station, stopping it requires someone to pause and ask a simple question: Is court really the best place to resolve this dispute?”,
“__H__Why Business Clients Should Consider Arbitration—Even Without a Clause”,
“Many modern commercial disputes resemble the fisherman’s problem more than lawyers realize. Capital is tied up. Operations are disrupted. Business relationships fray. Time becomes a significant cost. When lawyers and their clients pause to ask whether arbitration makes sense, several realizations may emerge:”,
“__H__Speed Often Matters Most”,
“Business clients may talk about vindication, principle, or leverage. But what they often need most is resolution.”,
“Court dockets are crowded. A case filed today may not reach trial for two or three years—or longer.”,
“Arbitration can compress timelines dramatically. Hearings are scheduled when the parties and arbitrator are available—not when the court’s calendar allows. Discovery is streamlined. Motion practice is limited. Finality arrives in months, not years.”,
“For businesses operating in real time, that difference can be decisive.”,
“__H__Expertise Is Not Random”,
“In litigation, judges are assigned randomly. You might draw someone with deep familiarity with the relevant industry or issues. Or you might not.”,
“Arbitration allows the parties to choose a decision-maker with appropriate expertise.”,
“Less time is needed to educate the arbitrator about industry practices. More time is devoted to what actually matters.”,
“__H__Discovery Can Be Right-Sized”,
“One of arbitration’s often critiqued features—limited discovery—is often one of its greatest strengths.”,
“Litigation discovery can spiral out of control, consuming more time and money than the dispute warrants. Depositions multiply. Document requests grow broader. Motion practice follows.”,
“Arbitration discovery can be tailored to the needs of the case. When counsel articulate legitimate needs, discovery is usually permitted. What disappears is not fairness, but excess, leaving discovery that is sufficient, focused, and less expensive.”,
“__H__Privacy Has Real Value”,
“Court proceedings are public by default. Arbitration is not; journalists and the public cannot walk into an arbitration hearing.”,
“For closely held companies, partnerships, family businesses, and organizations concerned about reputational risk, privacy can be extremely important. Financial information, internal disputes, and proprietary data can remain private within the arbitration process.”,
“__H__Finality Can Be a Feature, Not a Flaw”,
“Limited appellate review is frequently cited as a drawback of arbitration. But in many commercial disputes the possibility of appeal is more theoretical than practical.”,
“Appeals are expensive. They are slow. And they rarely succeed.”,
“As a tradeoff, arbitration offers a focused decision from a neutral with subject matter expertise that allows parties to move on. And if the stakes are high enough, the parties can effectively front-load an appeal by agreeing to have three arbitrators with relevant expertise decide the dispute.”,
“For parties who want closure—to put the dispute behind them—finality is a feature, not a drawback.”,
“__H__How Post-Dispute Arbitration Happens”,
“When parties agree to arbitrate after a dispute arises, the process unfolds in one of two ways.”,
“Organizations such as the American Arbitration Association can provide procedural rules and case management. The structure can be reassuring for parties who want established procedures guiding the process.”,
“Alternatively, the parties—like the fishmongers from days of old—may simply agree on an arbitrator and design the process themselves. This approach can be more streamlined, though it requires cooperation and clarity about how the arbitration will proceed.”,
“__H__When Arbitration Makes Particular Sense”,
“Post-dispute arbitration is not appropriate for every case. But certain circumstances make it particularly attractive: disputes involving time-sensitive business decisions; cases benefiting from specialized industry expertise; situations where confidentiality is important; disputes where litigation costs may be excessive; and matters where the parties want a decision, not a war of attrition.”,
“When these factors align, arbitration deserves serious consideration—even after litigation has begun. All it takes is an attorney wise and confident enough to ask their adversary: “How do you feel about arbitration?””
]
},
{
“title”: “Two Years In: Reflections from the Neutral’s Chair”,
“date”: “January 2026”,
“body”: [
“For many years, serving as an arbitrator and mediator was an important adjunct to my business litigator and in-house counsel day jobs. Two years ago, I made a long-contemplated professional transition to full-time service as neutral. There’s a narrow window between experience and senility, and I wanted to climb through the window before it closed. (If I didn’t make it in time, please tell me.)”,
“As I mark this milestone, I find myself reflecting on what my ADR career—and especially these past two years—have taught me: about dispute resolution, about the parties and counsel who have entrusted their matters to me, and about the profound responsibility that comes with the job.”,
“What follows isn’t a checklist or a rulebook. Think of it as a handful of observations from my side of the table—lessons I have learned from talented lawyers and their passionate clients about what actually moves the needle in arbitration and mediation.”,
“__H__Observation One: Respectful Informality — The Quiet Engine of Effective Advocacy”,
“Arbitration has its own personality. It is less rigid than litigation, but no less serious in its purpose. The best hearings share an unmistakable tone of respectful informality—a blend of professionalism and ease that allows counsel and witnesses to get to the heart of the matter without the procedural tension that is often endemic to courtroom litigation.”,
“This is not politeness for its own sake. Zealous, enthusiastic, and even theatrical advocacy all have their place. But arbitration’s informality creates an environment where counsel can engage more directly, where testimony unfolds more naturally, and where the process itself is more efficient.”,
“When advocates embrace this dynamic, the hearing flows. Advocacy often becomes clearer, more focused, and more persuasive. The record develops cleanly, and the proceeding often concludes more quickly than expected. Clients benefit through reduced cost and reduced stress.”,
“__I__Takeaway: Welcome the environment. Respectful informality is not a relaxation of standards. It can be an advocacy tool—one that enhances credibility, efficiency, and client value.”,
“__H__Observation Two: Arbitration Discovery Concerns Largely Are a Myth”,
“For arbitration proponents who prize efficiency and cost control, limited discovery is precisely the point—a feature, not a bug. Arbitration skeptics—those who believe truth-finding requires more fulsome discovery—critique perceived restrictions they fear will hinder their efforts.”,
“In practice, however, that critique is largely unfounded.”,
“First, when both sides want discovery, they generally get it. Arbitrators rarely override a shared mindset toward discovery, unless it is clearly excessive.”,
“Second, arbitrators have flexibility. Discovery can be tailored to the needs of the case. If counsel can articulate a legitimate need for discovery, they usually will get it.”,
“Third, the rationale for expansive discovery rules in federal and state litigation is to prevent unfair surprise. Yet I cannot recall a single arbitration where counsel was confronted at the hearing with something material they reasonably would have uncovered with open-ended discovery.”,
“__I__Takeaway: Attorneys underrate their own capabilities. They know what matters, and they know how to credibly request it even under narrower arbitration discovery parameters.”,
“__H__Observation Three: You Will Be Heard”,
“One of the few grounds for vacating an award is denying a party the chance to present its evidence. Arbitrators know this. As a result, they lean toward allowing the record to be built. In arbitration, everyone gets heard.”,
“Savvy advocates understand that objections should be strategic, not reflexive. Unless evidence is unduly prejudicial or threatens to derail the proceeding, most objections gain little and risk looking overly combative.”,
“Let the record come in. Focus your advocacy on why certain evidence should or should not carry weight.”,
“__I__Takeaway: Choose objections with care and trust the process.”,
“__H__Observation Four: A Well-Crafted Arbitration Provision Will Obviate the Need for Appeals”,
“In debating whether arbitration is fatally flawed due to the lack of meaningful appellate review, consider the following:”,
“First, in small to moderate-sized civil litigation, appeals are not practically viable. For one thing, the additional cost is not warranted. Second, statistically, a large majority of civil litigation appeals fail.”,
“Third, unlike civil litigation—where the judge hearing the case may have limited or no experience with the subject matter—arbitration offers the parties the opportunity to select a subject matter expert. Sure, there is a risk that an arbitrator will err, but is that risk greater or less than what a litigant can expect in court?”,
“Fourth, in larger business cases—the ones where appeal rights are foremost in the minds of counsel—the parties’ arbitration agreement often calls for a panel of arbitrators. Three arbitrators, not one, all experienced in the subject matter, will be considering the dispute. In serving on three-arbitrator panels, I’ve observed a serious commitment where my colleagues and I debate, test and challenge the evidence and legal arguments presented. The process is serious, thorough, and collaborative.”,
“In effect, empaneling three arbitrators for complex matters serves to front-load the appeal. Instead of a single judge, the parties receive the benefit of three neutrals chosen for their subject matter knowledge, and who, unlike an appellate tribunal, are each deeply engaged in the fact-finding aspect of the dispute.”,
“__I__Takeaway: In larger, complex cases, three-arbitrator panels meaningfully mitigate concerns about appellate review. They provide the parties with rigorous scrutiny without the need for a formal appeal.”,
“__H__Observation Five: Mediation Is More Art Than Science”,
“Age as much as experience has made me a better mediator. Business owners and executives now see me as a contemporary (or, help me, an elder). Conversations about gym routines and resulting aches and pains are effective foreplay to more challenging discussions about the dispute.”,
“In the mediator’s chair, the most powerful tool is listening—really listening—long enough for people to feel heard. Once that happens, good things often happen.”,
“Those good things usually depend on counsel. The best advocates have prepared their clients not just with arguments, but with expectations. They understand that the mediator’s job is to help the parties extricate themselves from a problem, not to deliver a verdict. Good lawyers know when to push and when to pause—when to actively engage, and when to let the game come to them.”,
“And no matter how much a party may contextualize their demand or counter with principle, I’ve learned that most cases don’t settle because one side “wins the logic war.” They settle because someone finds a way to make the outcome feel fair enough.”,
“__I__Takeaway: In mediation, facts matter, but feelings decide.”,
“__H__Looking Ahead: The Next Chapter”,
“Cases that settle early often do so because everyone sees roughly the same picture. When a case makes it all the way to a late-stage mediation or an arbitration hearing, it’s usually because both sides genuinely believe they’re right.”,
“These aren’t academic exercises. The business owner who mortgaged everything. The investor whose retirement depends on the outcome. The employee whose career hangs in the balance. Every award affects real people at pivotal moments.”,
“To those who have entrusted me with your disputes: thank you. Your professionalism, creativity, and enthusiastic advocacy have made this work meaningful and joyful. Every lawyer I’ve worked with—win or lose, settled or not—has contributed to my growth as a neutral.”,
“Special thanks to the talented crew at the American Arbitration Association, whose support allows neutrals to serve with confidence.”,
“I look forward to continuing to share what I learn—both in this newsletter and through the ongoing dialogue that makes our field evolve.”,
“Whether we’ve worked together on a dispute or you simply read Positively Neutral for insight (or as a sleep aid), thank you for being part of that dialogue.”,
“__I__Takeaway: Here’s to the next two years, to that window remaining open for years to come—and to the belief that even in conflict, there is always room for clarity, respect, and a little bit of grace.”
]
},
{
“title”: “The Upside of Mediation “Reasonableness” Over “Righteousness””,
“date”: “October 2025”,
“body”: [
“__H__Two Familiar Scenes”,
“Scene One. You’re preparing a client for mediation. He’s furious—his former business partner abandoned a real estate project, leaving him holding the mortgage. The property might have real upside, but in the meantime, your client feels betrayed and wants to hit back with everything the law allows: default interest, forced sale, maximum damages. Legally, he’s entitled to it all. Strategically? You’re not so sure.”,
“Scene Two. You’re in the mediation itself. Opposing counsel opens by demanding the moon: punitive interest, attorneys’ fees, total capitulation. Your instinct is to match fire with fire. After all, isn’t zealous advocacy supposed to look like toughness?”,
“If either scenario sounds familiar, you’ve brushed up against one of mediation’s odd truths: in this arena, “reasonable” often outmuscles “righteous.””,
“__H__“But My Client Expects Me to Fight””,
“Lawyers often assume their clients want to see a warrior in the chair across the table, not a diplomat. Clients themselves sometimes push for aggressive posturing—demand everything now, and let the mediator drag us back toward compromise.”,
“That playbook is common. It also burns hours (sometimes the whole day, or more) on outrage, counter-outrage, and bad-faith theatrics. Best case, the mediator eventually nudges everyone toward sanity. Worst case, the polarization hardens and settlement slips away.”,
“But there’s another approach.”,
“__H__A Different Kind of Opening Move”,
“Consider a mediation I recently observed.”,
“Two families inherited their patriarchs’ real estate venture. Unlike the original partners—longtime friends—the heirs had no relationship. One side wanted out. The other believed the property would gain value if held.”,
“To complicate matters, the “hold” side had advanced funds secured by a mortgage that had matured. On paper, they were entitled to repayment plus a hefty bump in post-maturity interest. A righteous claim.”,
“Instead, their lawyer recommended something different: ask only for repayment at the original contract rate. Leave the extra interest on the table.”,
“That single move was transformative. This gesture of voluntary restraint—foregoing a modest but legitimate financial claim—created a collaborative atmosphere that caused negotiations to shift from grievance-airing to problem-solving. The mediation accelerated instead of bogging down. The final settlement came relatively quickly, without bitterness—and the “conceding” side arguably made up the modest interest concession in the overall deal.”,
“__H__Why Reasonableness Works”,
“Gestures like that do more than save time. They unlock dynamics that extreme posturing shuts down.”,
“1. The Reciprocity Advantage. Psychologists call it the reciprocity principle: when someone makes a concession, the natural impulse is to respond in kind. In mediation, a small voluntary step often sparks a collaborative response.”,
“2. Credibility Enhancement. Parties who stake out modest, defensible positions are seen as serious actors. Each subsequent proposal carries more weight.”,
“3. Arming the Mediator. Mediators dislike carrying extreme demands into the other room—it undermines credibility on both sides. By contrast, when the mediator walks in with a reasonable proposal, especially one that includes a unilateral concession, the pressure shifts: responding unreasonably risks losing the moral high ground.”,
“4. Focus on What Matters. Instead of wasting hours on posturing, the parties spend their energy on solving the business problem that brought them to mediation in the first place.”,
“__H__Leveraging Your Mediator”,
“Attorney resistance to reasonable positioning typically stems from predictable concerns. Here’s how mediators can help you address them:”,
““The other side will think we’re weak.” A skilled mediator reframes the opening as a strategic choice, not surrender. Reasonableness reads as strength when delivered with confidence.”,
““My client expects maximum demands.” Mediators can explain directly to your client that mediation is not litigation. Different forums call for different approaches. Reasonableness isn’t weakness—it’s strategic.”,
““What if the other side doesn’t reciprocate?” Then you’ve lost nothing but a modest gesture. You’ll quickly learn you’re facing an unreasonable counterparty—and can recalibrate accordingly.”,
“__H__The End Game: Results Over Rhetoric”,
“Courtrooms exist for proving who’s “right.” Mediation exists to solve problems efficiently, preserve relationships where possible, and avoid the cost and uncertainty of litigation.”,
“When you frame opening positions around what your client truly needs—rather than every theoretical entitlement—you create space for faster, better outcomes. Call it strategic restraint: you risk little, but you gain credibility, momentum, and the chance to resolve disputes on favorable terms.”,
“So next time you prepare for mediation, resist the pull of righteousness. Gratuitously offer something of value. You may be pleasantly surprised at the return on this modest investment.”
]
},
{
“title”: “Bridging the Valuation Gap: Strategic Tools for Managing Damages Disputes in Arbitration”,
“date”: “July 2025”,
“body”: [
“The key moment has arrived. In a high-stakes arbitration involving an ownership interest in a company, your client’s expert testifies that the plaintiff’s interest is worth $19.2 million, relying on industry-standard valuation methods and well-supported projections. But not so fast: the defendant’s expert raises her right hand, swears to tell the truth and—just as confidently—opines that plaintiff’s interest is worth no more than $750,000.”,
“The methodologies diverge, the assumptions clash, and the arbitrator’s responsibility is to sort through the financial crossfire. How he may process the information leaves both you and your adversary feeling uncertain, and your respective clients vulnerable.”,
“Unlike liability determinations—which typically hinge on factual disputes or legal interpretations—damages calculations in complex commercial matters frequently involve competing expert valuations that differ by orders of magnitude.”,
“Valuation experts offer conflicting professional opinions predicated upon divergent methodologies, assumptions and risk assessments. These inherent uncertainties create fertile ground for legitimate disagreement among well-credentialed experts.”,
“Faced with substantially disparate presentations from well-credentialed experts, arbitrators are tasked with determining which expert’s approach most accurately reflects economic reality. An arbitrator, no matter how attentive and well-intentioned, may reach a conclusion that does not align with either party’s expectation.”,
“For business litigators, the \”battle of the valuation experts\” constitutes one of the more challenging aspects of high stakes arbitration practice—and one where strategic planning can meaningfully reduce the potential for disappointment.”,
“Here are a few suggestions.”,
“__H__Selecting the Right Arbitrator: Financial Acumen Is a Strategic Asset”,
“When a case turns on damages, arbitrators’ subject matter expertise regarding liability issues may be less important than meaningful experience in financial analysis, accounting, or valuation.”,
“Consider arbitrators whose resumes reveal experience as a CFO, CPA, or investment banker. Other resources, such as American Arbitration Association case managers, can help you identify arbitrators who understand damages models and whose eyes won’t glaze over when experts begin discussing the weighted average cost of capital.”,
“Arbitrators with financial fluency won’t necessarily eliminate the valuation gap—but they are better equipped to understand why it exists and how to navigate it intelligently.”,
“__H__Concurrent Testimony: Putting Experts Side by Side”,
“Traditional expert testimony often resembles two people having separate conversations. One expert delivers an uninterrupted narrative, then the opposing expert does the same. The arbitrator is left to connect dots that may not align.”,
“One way to change this dynamic is through concurrent expert testimony. While not the most appetizing of descriptive terms, “hot tubbing”—as this increasingly common approach in complex arbitrations is called—places both experts on the stand at the same time. The experts address the same issues in real time, often responding to questions from the arbitrator.”,
“The result is direct comparison, fewer missed connections, and clarity as to where and why the experts disagree.”,
“To maximize the benefits, work with opposing counsel to organize the session around key valuation elements: lost profits calculations, growth projections, discount rates, and risk premiums. Encourage your experts not only to defend their approach, but to clearly articulate the limitations in alternative presentations.”,
“When structured properly, concurrent testimony transforms an abstract valuation debate into a focused dialogue that provides the arbitrator with information needed for decision-making.”,
“__H__Avoid the All-or-Nothing Mistake: Provide Arbitrators with Flexibility Through Risk Scenarios and Sensitivity Analyses”,
“Presenting a single valuation number may lead an arbitrator to the binary choice of accepting your expert’s entire approach or rejecting it wholesale.”,
“Instead, encourage your expert to present a range of outcomes based on variable inputs. Such “sensitivity analyses” demonstrate how changes in key assumptions affect the bottom line.”,
“This flexibility empowers arbitrators to accept some elements of one expert’s approach while adjusting others. Instead of being forced to adopt one model wholesale, the arbitrator can tailor an award based on independent assessment of each component.”,
“__H__Bifurcation and Mediation: Separating Issues to Create Resolution Opportunities”,
“Sometimes the smartest move is to separate liability from damages. Bifurcating the arbitration allows parties to focus first on whether liability exists, then address damages separately if needed.”,
“If liability is established, bifurcation creates a natural window for mediation before proceeding to a damages hearing. Once liability is clear, both sides have better information and stronger incentives to negotiate. This approach eliminates uncertainty from divergent expert presentations and allows for creative solutions—structured payments and non-monetary remedies—that may not be available through a pure damages award.”,
“In appropriate cases, bifurcation paired with mediation can transform a contentious arbitration into a resolved business problem.”,
“__H__High-Low Agreements: Quietly Managing Risk”,
“When damages uncertainty is high, a confidential high-low agreement offers protection and predictability for both parties. These arrangements establish private minimum and maximum amounts: if the arbitrator’s award falls below the floor, it’s adjusted upward; if it exceeds the ceiling, it’s reduced.”,
“The arbitrator remains unaware of these boundaries and renders the award on the merits. Meanwhile, claimants are assured of recovering at least a baseline amount, and respondents limit their downside risk. Neither side gives up the ability to present a full case or obtain a binding award.”,
“Negotiating a high-low requires careful consideration of exposure, leverage, and likely outcomes. But when parties are far apart, these agreements provide valuable insurance without compromising advocacy.”,
“__H__Baseball Arbitration: Encouraging Reasonableness Through Final Offers”,
“In cases where the parties want to reduce valuation uncertainty and incentivize reasonable positions, they may consider agreeing to \”baseball arbitration.\” Each party submits a proposed damages amount, and the arbitrator must choose one or the other without modification—no averaging, no crafting a third number.”,
“The rationale is simple: knowing that only one number can prevail, each party is encouraged to submit a figure that is both defensible and reasonable. Extreme positions become risky, because they are unlikely to be selected. The result is often a narrowing of the damages gap and more efficient presentation of the expert evidence.”,
“Baseball arbitration can be tailored further with “night baseball,” where the arbitrator makes a blind determination and the figure closest to that ruling becomes the award.”,
“__H__Final Thoughts: Closing the Gap, Enhancing the Process”,
“No strategy will entirely eliminate uncertainty in commercial damages disputes. But smart planning and procedural creativity can bring structure and clarity to even the most complex valuations.”,
“By selecting financially literate arbitrators and utilizing expert “hot tubbing,” counsel can facilitate damages decisions that reflect economic reality. By implementing protective techniques—mediation of damages once liability is determined, high-low agreements and baseball arbitration—counsel can hedge against well-intentioned but potentially misguided arbitral decisions.”,
“For attorneys navigating the valuation gap, these opportunities can provide a strategic advantage. The key is recognizing that damages disputes require different tools than liability disputes—and planning accordingly.”
]
},
{
“title”: “What Do Business-to-Business Arbitration and a Well-Tailored Suit Have in Common?”,
“date”: “April 2025”,
“body”: [
“Scenario #1: You are a transactional attorney representing a business client in a substantial transactional matter. It’s time to address the dispute resolution tribunal—court or arbitration. The draft agreement provided by the counterparty provides for arbitration. As you review the agreement with your client, she suggests that you should push back on the counterparty’s arbitration preference. However, the contract negotiation already has been stressful, and you are dubious that your client’s suggestion is a good one.”,
“Scenario #2: You are a business litigator and your client advises you that a dispute between his company and his contract counterparty soon will involve claims flying back and forth. He emails you with the operative agreement and it provides for arbitration. You cringe, because you anticipate that he will be upset to hear that he cannot proceed in court.”,
“In recent years, arbitration has received a lot of media attention, mostly in the context of consumer and employment disputes. Lost in the discussion, however, are the advantages that arbitration continues to provide over litigation in a B2B context.”,
“When newspaper-reading B2B clients balk at arbitration, knowledgeable attorneys educate them about often unknown or unappreciated virtues of B2B arbitration. Let’s review some of them.”,
“__H__The “But What About the Judge?” Syndrome”,
“A common misconception is that litigation provides a more reliable decision-maker. In litigation, the case will be decided by an exalted, robed judge in an elegant courtroom, whereas arbitrators are “wanna be” judges lacking in credentials and gravitas.”,
“Robes notwithstanding, arbitration provides parties with a far greater opportunity to ensure that their matter will be decided by someone best suited to the task. Especially in recent years, organizations like the American Arbitration Association (AAA) have vetted and curated their rosters to ensure that arbitrators are exceedingly well-credentialed.”,
“More importantly, no matter their pedigree, judges may have limited familiarity with the subject matter of the dispute. Whereas parties in litigation typically have no control over the judge assigned to their case, arbitration allows businesses to select decision-makers with specific expertise relevant to their industry and dispute.”,
“For example, AAA maintains rosters of arbitrators who are specifically qualified by areas of need. Need someone who understands the intricacies of M&A disputes? There’s a panel for that. Worried about complex intellectual property issues? There’s a panel for that too. Have a dispute where the claimed damages are in the tens of millions of dollars? Consider the AAA’s large, complex case panel.”,
“With this array of options, parties can ensure that their dispute is resolved by a professional who understands the nuances of the issues at hand, providing a level of expertise that litigation cannot guarantee.”,
“And here’s the kicker – if you really can’t let go of that judicial security blanket, the AAA enables parties to select from a panel of former judges.”,
“__H__The “Appeals Safety Net” Anxiety”,
““But what if the arbitrator gets it wrong?” Attorneys know that, except in very limited circumstances, an arbitrator’s decision will not be reversed by a court. But let’s put this in perspective. What percentage of litigated cases are appealed? And of those, how many appeals succeed?”,
“Still, for high-stakes cases, there’s an arbitration solution: the three-arbitrator panel. The AAA permits the parties by agreement to utilize a three-arbitrator panel. Even in the absence of agreement, the AAA nonetheless can exercise discretion to appoint a three-arbitrator panel if deemed appropriate.”,
“Think of this as a front end appeal process. With three sets of arbitrator eyes listening to the evidence, considering the applicable contract and interpreting the law, the likelihood of error is remote, obviating concerns about the absence of appeal rights.”,
“When considered as an alternative for high-stakes arbitrations, the additional cost of a three-person panel is justifiable and can be measured against the costs (and likelihood of success) on a judicial challenge to a single arbitrator’s award.”,
“And, spoiler alert, for those wanting suspenders in addition to their belt, AAA offers appellate arbitration, which parties can provide for in their arbitration agreement.”,
“__H__The Discovery Security Blanket”,
“One of the biggest concerns attorneys hear about arbitration is the perceived limitation on discovery. This concern often stems from a fundamental misunderstanding about arbitration flexibility.”,
“Contrary to rumor, arbitration allows parties to shape the discovery process to fit their specific needs. Arbitration permits parties to agree on the scope and method of discovery, ensuring that they have access to necessary information without the burdens often associated with litigation. Rarely do arbitrators impose material limitations on discovery when the parties collectively present a discovery plan for approval.”,
“In the absence of an agreement, arbitrators will issue a discovery order establishing the extent and type of discovery that the parties may pursue. The arbitrators’ issuance of a “front end” order should be compared with litigation discovery. Federal and state procedural rules on their face may be more open-ended than the discovery order issued by an arbitrator at the commencement of the matter. However, in litigation, parties routinely object to the scope of discovery requested under those open-ended rules, with judges often limiting the requested discovery in expensive and time-consuming motion practice.”,
“At the end of the day, the scope of discovery available to the parties in arbitration and litigation is not materially different.”,
“Furthermore, arbitrators are more accessible than judges when disputes arise during discovery. Instead of waiting weeks or months for a court hearing on a discovery motion, parties can often resolve disputes in a matter of days through a conference call with the arbitrator. This responsiveness ensures that arbitration remains efficient and focused on the resolution of substantive issues rather than procedural battles.”,
“__H__Confidentiality and Protection of Business Interests”,
“For companies handling sensitive financial, technological, or strategic information, arbitration provides a significant advantage: confidentiality. Unlike court proceedings, which are generally public, arbitration allows disputes to be resolved in a private setting. This protects proprietary information, trade secrets, and reputational interests, preventing competitors or the media from gaining access to potentially damaging disclosures.”,
“__H__The Bottom Line: A Business-Driven Approach to Dispute Resolution”,
“The goal of arbitration is not to mimic litigation—that’s why courthouses were invented. Rather, arbitration seeks to create a dispute resolution process that serves clients’ actual needs, not their perceived ones. Think of arbitration as a blank canvas rather than a pre-painted picture. You can design it to address the concerns that actually matter to your client while letting go of the ones that don’t.”,
“When clients raise the perceived shortcomings of arbitration, attorneys should remind them that business-to-business disputes are different than the arbitration matters discussed in the newspapers, and educate them about the ability to customize arbitration to serve their business’s specific needs. By shifting the narrative from skepticism to opportunity, attorneys can help their clients see that arbitration often delivers faster, more cost-effective, and more specialized dispute resolution than traditional litigation.”,
“Next time a client expresses hesitation about arbitration, start by asking what they truly need in a dispute resolution process. With a well-crafted arbitration agreement, businesses can achieve better outcomes while avoiding the inefficiencies and unpredictability of litigation. By taking a proactive approach, attorneys can position arbitration not as a compromise, but as a strategic advantage in high-stakes commercial disputes.”
]
},
{
“title”: “Kool-Aid®, Goalposts and Uncle Harry”,
“date”: “January 2025”,
“body”: [
“Mediation provides a golden opportunity to bring closure to a matter, avoid lengthy trials, and protect the parties’ interests. However, the effectiveness of mediation is heavily influenced by the parties’ expectations. When preparing their clients for mediation, attorneys should be vigilant in order to avoid certain pitfalls that harm the chances of reaching a favorable settlement. Indeed, if not careful, failure to anticipate these problem areas can destroy potentially positive outcomes before the parties roll up their sleeves and get to work.”,
“__H__1. Failing to Ensure Clients Understand That Arguments Their Attorneys Advance Are Not “Sure Winners”: Don’t Drink the Kool-Aid®”,
“One of the challenges faced by attorneys in preparing clients for mediation is setting realistic expectations about the strengths and weaknesses of their case. Overconfidence can be the Achilles’ heel of any settlement negotiation.”,
“Attorneys are skilled at designing and advancing legal arguments to support claims and defenses. While confidence is important, it is equally important for attorneys to temper optimism with reality. If clients believe that their legal arguments are so compelling that the other side will simply cave, they may be unwilling to consider reasonable settlement terms.”,
“This mindset, “drinking the Kool-Aid®,” can cloud judgment and prevent a client from recognizing the need to be flexible or pragmatic in the mediation room. A client who is fixated on winning in court may resist the idea of compromise, undermining the purpose and goal of mediation.”,
“To avoid falling into this trap, attorneys need to have honest conversations with their clients, making sure they understand the relative strengths and weaknesses of the arguments advanced in court filings. Believing that a favorable litigation outcome is a foregone conclusion will only serve to frustrate the mediation process.”,
“Clients with realistic expectations are likelier to approach the mediation with a level-headed, open-minded perspective, increasing the chances of reaching a settlement.”,
“__H__2. Don’t Move the Goalposts: Establishing a Bargaining Position Consistent with Prior Communications”,
“Often, prior to a formal mediation, the parties have already communicated settlement positions and expectations. Consider, for example, a dispute over an ownership interest in a company or a piece of property, where the parties—perhaps through expert reports or depositions–have exchanged respective views about the asset’s value.”,
“Mediation day arrives with the expectation that settlement will be achieved somewhere between the parties’ respective valuations. The mediator’s goal is to refine the parties’ bargaining positions and to assess whether and how best to bridge the gap between the two sides.”,
“Sometimes, however, a party decides that it no longer wants to live with the settlement position previously articulated—a plaintiff decides he wants more, or a defendant decides she will offer less. When a party starts the mediation with a surprising position that falls outside the parameters previously discussed, it meaningfully complicates the challenge of finding common ground. A party that changes a bargaining position with new or revised demands can come across as engaging in bad faith, undermining goodwill necessary to achieve a settlement.”,
“To minimize this risk, attorneys should have clear discussions with their clients about their positions and objectives before mediation, and ensure that the client’s expectations are properly aligned with what has already been communicated to the other side.”,
“If a client wants to propose terms that materially depart from what was previously communicated, it is essential to reassess the likely impact of a change of position on the negotiations. At minimum, before mediation day, any change to a previously articulated position should be communicated to adversary counsel and to the mediator to avoid a mediation surprise that may end productive discussions before they begin.”,
“__H__3. Where’s Uncle Harry? Ensuring That All Necessary Parties Attend the Mediation”,
“After the parties have spent much of mediation day inching closer to a resolution, one of the parties announces that he cannot commit until the terms are blessed by a previously unidentified and currently absent decision maker. The MIA decision maker may be a spouse, family member, or business partner whose input on the settlement terms is deemed necessary but regrettably is unavailable.”,
“The parties leave, with fingers crossed, but momentum is lost and the anticipated settlement is subject to Uncle Harry’s second guessing. When one of the attorneys subsequently communicates that Uncle Harry voiced objections or requirements that were not raised during the mediation, the progress previously made is undermined if not destroyed altogether.”,
“This unforced error is avoidable. Attorneys always should discuss with their clients who needs to attend the mediation and make sure they are available to participate. The necessary individuals may be those with concrete knowledge (e.g., a business partner) or one whose blessing will be required as a practical matter (e.g., a spouse).”,
“The attorneys also should advise the mediator who plans to attend and the nature of their involvement. The mediator can ensure the other party is made aware of the guest list to ensure there are no objections to the attendance by non-parties.”,
“Some of the practical steps an attorney can take to ensure all necessary parties are appropriately involved include: Pre-Mediation Preparation — confirm with the client who needs to be involved and whether they are available, and if any key individuals are unavailable, make arrangements for them to participate by phone, video conference, or at least be readily reachable; Clear Communication of Authority — make sure that clients and other involved parties understand their level of authority, and whether they need approval from someone else, so no surprises occur when agreements are reached; and Anticipate Who Should Attend from the Other Side — alerting the mediator when the adversary party will benefit from a supportive network so the mediator can facilitate the inclusion of helpful participants.”,
“__H__Final Thoughts”,
“Mediation can be challenging enough without complications that come from drinking Kool-Aid®, moving goal posts, and failing to invite Uncle Harry. By ensuring that clients’ expectations are realistic, making sure they stick to their communicated positions, and coordinating the attendance of all required decision makers, attorneys are better positioned to facilitate effective and productive negotiations that lead to successful outcomes.”
]
},
{
“title”: “Prioritizing Process”,
“date”: “October 2024”,
“body”: [
“A rookie business litigator once was asked by a real estate partner to cover the closing of a sale of a condominium. Knowing nothing about real estate transactions and sheepishly asking what to do, the neophyte was told that, since the firm’s client was the seller, the only way to commit malpractice would be to leave the closing without the check. I am pleased to report that I overcame that low bar with flying colors.”,
“What does that have to do with arbitration? Arbitrators, like litigators pretending to be real estate attorneys, want to “get it right” by issuing awards that are consistent with the facts and the law. However, as far as the substance of an award is concerned, it’s exceedingly difficult to issue a decision that will not withstand judicial scrutiny. The bar is low.”,
“The United States Supreme Court has held that, “[u]nder the FAA [Federal Arbitration Act], courts may vacate an arbitrator’s decision ‘only in very unusual circumstances.’ … The potential for…mistakes is the price of agreeing to arbitration.” Oxford Health Plans LLC v. Sutter, 569 US 564 (2013). Similarly, the Southern District of New York recently explained that “a court ‘will uphold an arbitration award…so long as the arbitrator has provided even a barely colorable justification for his or her interpretation of the contract.’” Risen Energy Col, Ltd. v. Focus Futura Holding Participacoes S.A., 23 Civ. 10993 (LGS) (June 11, 2024). State arbitration laws generally are equally protective of the decisions that arbitrators issue.”,
“While an arbitrator largely will escape judicial second guessing of his decision, arbitrators must do more than decide; they must oversee the proceeding and do so fairly. Legislatures, and therefore courts, are less protective of arbitrators who fail to ensure a fair process. The FAA and state statutes impose requirements that have teeth. The FAA, for example, provides that a court may vacate an arbitration award where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.”,
“The safe way out for arbitrators is to permit open-ended discovery; to allow the parties to file motions, no matter how spurious; to liberally grant postponements; and to admit all evidence the parties seek to introduce. Arbitrators understand that accommodating all parties’ procedural requests is likelier to render the award bullet proof.”,
“However, that’s not how arbitration is supposed to work. Arbitration is intended to be faster, more cost effective and more efficient than litigation. Rules of tribunals such as the American Arbitration Association—while designed to ensure parties will receive a full and fair hearing—encourage the arbitrator to control the process.”,
“For example, on discovery: the AAA commercial rules set forth a procedure for the exchange of documents, but do not specifically reference interrogatories or depositions. Instead, the rules provide that “[t]he arbitrator shall manage any necessary exchange of information among the parties with a view to achieving an efficient and economical resolution of the dispute….””,
“On summary judgment: the AAA rules do not openly authorize a party to seek summary judgment, but rather require a party to seek permission to file a dispositive motion, with permission to be granted “only if the arbitrator determines the moving party has shown that the motion is likely to succeed and to dispose of or narrow the issues in the case.” AAA instructs the arbitrator to “consider the time and cost associated with the briefing of a dispositive motion in deciding whether to allow any such motion.””,
“On hearing dates: under AAA rules, the arbitrator sets the date for the hearing, and the parties are directed to “be cooperative in scheduling the earliest practicable date” and to “adhere to the established hearing schedule.” Absent agreement of the parties, the arbitrator may postpone the hearing upon the request of a party “for good cause shown.””,
“On evidence: AAA rules provide that “[t]he arbitrator, exercising his or her discretion, shall conduct the proceedings with a view to expediting the resolution of the dispute…and may direct the parties to focus their presentations on issues the decision of which could dispose of all or part of the case.””,
“An arbitrator’s fidelity to the goals of arbitration—speed, economy and efficiency—militate against an open ended and unbounded proceeding. The challenge for an arbitrator is to strike the appropriate balance.”,
“Sometimes this is easy. Even in contentious matters, counsel sometimes cooperate. Either at the invitation of the arbitrator or on their own, counsel may collectively propose scheduling milestones regarding discovery, motions, witnesses, exhibits and hearing dates. In those instances, a party is unlikely to challenge the ultimate award by arguing that it was unfairly rushed to a hearing or not afforded the opportunity to fully and fairly present its case.”,
“In other instances, however, counsel are less collaborative, leaving the arbitrator to determine scheduling, discovery and hearing dynamics. An experienced arbitrator makes these determinations aware of the competing admonitions: first, the arbitrator strives to get to the heart of the dispute efficiently and expeditiously without unnecessary frolics and detours; second, the arbitrator considers whether rulings limiting a party’s desire for open ended discovery, unbounded motions, delay, etc. will invite judicial challenges to the award. An arbitrator understands that judicial challenges, even if unlikely to succeed, can substantially delay the confirmation of the award—and thus create the very delay and complication that arbitration is intended to avoid. To prevent this, an arbitrator may be inclined to provide more latitude.”,
“Counsel interested in ensuring an arbitration that is both efficient and minimizes the risk of judicial challenges to the fairness of the process should consider the following: first, endeavor to agree with your adversary upon arbitration milestones and procedures—an experienced arbitrator often will invite the parties to propose a schedule, and if not, take it upon yourself to raise it; second, consider the big picture when your adversary seeks a hearing postponement, or permission to file a dispositive motion or introduce testimony from an expert, and assess whether consenting will result in a faster proceeding with an award that cannot be judicially challenged; and third, when objecting to an adversary’s attempts to embroil the arbitration with delay and unmeritorious motions, be sure to articulate well-founded reasons for your objections that will prove persuasive to the arbitrator and can be incorporated into a ruling that will withstand subsequent judicial review.”
]
},
{
“title”: “Hidden Agendas”,
“date”: “July 2024”,
“body”: [
“When mediation day arrives, the parties and their counsel presumably are aware of the contours driving settlement. The claims and defenses frame the dispute. Information, either known from the outset or obtained through discovery, is used by the parties to evaluate the strengths and weaknesses of their respective positions. Sometimes, facts and circumstances not directly related to the merits can have a substantial impact on settlement value.”,
“For example, a plaintiff creditor may have a rock-solid claim against the debtor. Nonetheless, the debtor’s financial distress may cause the creditor to conclude that settlement will require acceptance of a meaningfully reduced amount than the paper value of the claim. A debtor’s claim of poverty—when backed up by precarious-looking financial statements—often leads a creditor to take what it can get before the bankruptcy petition is filed.”,
“Here’s another example. Knowing that the adversary party is hot-tempered to the point of acting irrationally may drive a party to make financial concessions so as to finally be rid of a pain-in-the-butt.”,
“In the instances above, the settlement analysis is influenced by the party’s knowledge of the relevant information, enabling the party to assess the reasonableness of a negotiated resolution.”,
“But what if key information is not known? Sometimes, there are extraneous circumstances that can meaningfully impact settlement value. A business entity may have wider, strategic concerns that are not generally known, and sometimes not shared with its own counsel.”,
“Here are a few illustrative examples: Company X, angry that a key employee jumped ship to join a competitor, has filed suit to enforce a non-compete provision in the faithless employee’s contract. But what if Company X simultaneously is recruiting a senior executive who herself is bound by a non-compete with her current employer? Vigorously asserting through litigation the sanctity of contractual non-competition provisions against its former employee may undermine Company X’s important recruitment efforts. Under these circumstances, would Company X be better off extricating itself from the lawsuit with its former employee?”,
“A complicated transaction between Company X and another entity went awry, resulting in a multi-count complaint. To appropriately pursue the matter, Company X’s attorneys will require details about the transaction and ongoing support from the key employees of Company X who “lived” the transaction. But what if those key employees no longer work at Company X, having departed the company for greener employment pastures? How will the company (and its outside counsel) litigate the claim when Company X’s personnel are no longer there to help?”,
“Company X is a financially strong entity with many business units. One of its business units has a trade debt collection claim that ordinarily would be routine. However, Company X has been negotiating the sale of the business unit. The prospective purchaser will not be taking the claim, meaning Company X will be left to pursue it, no longer as part of its ordinary operations, but as a one-off orphan, and thus a distraction. Will Company X be well-served to discount its claim to bring it to an end?”,
“These examples, and others like them, demonstrate how Company X’s attorney will benefit from knowing how the company’s larger strategic interests can impact the resolution of a single, discrete claim. Sometimes, the significance of the dispute for which the attorney was engaged will pale next to wider, practical ramifications facing Company X.”,
“However, especially with larger companies, the relevance (or even knowledge of) strategic matters in the company’s pipeline are not known to the company personnel involved with the dispute. Thus, Company X’s outside counsel may be operating in the dark, unable to appropriately advise the client regarding settlement risks and opportunities.”,
“Outside counsel should not assume the company representatives assisting with the dispute are knowledgeable about Company X’s wider strategic initiatives and how they might impact the current dispute. Those assisting with the claim typically are operational personnel who were involved with the specific transaction; their job responsibilities do not ordinarily encompass company-wide initiatives that may have strategic implications for the dispute.”,
“Outside counsel should inquire of Company X’s inside counsel whether there is anything about the particular dispute that potentially will be problematic for the company’s wider strategic interests. Inside counsel—who may not be particularly focused on the dispute that its outside counsel is handling—usually will appreciate an outside attorney’s inquiry as to whether there is anything about the dispute that implicates Company X’s wider objectives.”,
“An attorney representing the adverse party will find it more challenging to uncover information about Company X’s strategic initiatives that may be helpful in negotiating settlement. However, on occasion, sleuthing may prove productive: sometimes, personnel from the two, now adverse companies maintain relationships that transcend the dispute, and the client representative(s) can thus be a source of information or gossip about Company X that proves useful. Attorneys can also conduct an online review to determine whether there is available information about Company X’s current strategic initiatives—if Company X is publicly traded, its SEC filings may provide useful information, and Company X’s press releases can also provide insight that is valuable to an attorney representing an adverse party.”,
“Whether and how an attorney should share strategic information with a mediator is important. Knowledge of that information will be helpful to an experienced mediator in assessing the potential contours and terms of settlement. However, there is a legitimate concern by counsel that the mediator not inappropriately divulge the strategic information to the other party. Even though mediation confidentiality enables counsel to fully and frankly discuss the information with the mediator, both counsel and the mediator should ensure they are on the same page regarding how much information, if any, the mediator can share with the other side.”,
“In short, knowledge of a client’s underlying business strategies and external circumstances can significantly influence the resolution process. Attorney diligence in uncovering these broader issues—and, where appropriate, discussing them with a mediator—enables them to achieve results that are aligned with the overarching goals of their clients.”
]
},
{
“title”: “A Man Needs to Know His Statute of Limitations”,
“date”: “April 2024”,
“body”: [
““A man needs to know his [statute of] limitations.” –Clint Eastwood”,
“Those who include arbitration provisions in commercial contracts follow one of two paths. In most instances, the parties agree to arbitrate in accordance with the rules of a leading arbitration provider such as the American Arbitration Association. Providers such as AAA have a developed, robust set of rules that are continually reviewed and updated to reflect material legal decisions and evolving thoughts regarding the appropriate guidelines that should govern an arbitration.”,
“In other cases, parties craft arbitration rules the parties believe are most appropriate for their contractual relationship. Sometimes they start from scratch, but more often the parties begin by incorporating the rules of an arbitration provider. They then supplement the provider’s rules with specifics that the parties desire to make part of their agreement. Frequent topics include the size of the arbitration panel (1 or 3 arbitrators), the experience and qualifications of those who will be deemed to be satisfactory arbitrators, and the scope and nature of discovery that will be permitted in the arbitration. Recognizing that parties may want to tailor arbitration provisions to address particular contractual circumstances, AAA makes available a ClauseBuilder® Tool that contracting parties can use to assist them in drafting an arbitration agreement.”,
“One topic not typically addressed by either an arbitration provider’s rules or the parties’ contract embellishments is the statute of limitations. Providers such as AAA do not address limitations periods presumably because of a desire not to intrude upon substantive law established by state or federal courts and legislatures. As for the attorneys drafting arbitration agreements, I suspect they typically do not address statutes of limitation because they are unaware there is an issue requiring attention.”,
“But there is.”,
“Picture the following: your client, George Workerbee, seeks to bring a claim against his longtime software development partner, John Entrepreneur. George informs you that seven years ago John misappropriated a corporate opportunity by bankrolling his daughter-in-law in the development of an artificial intelligence protocol. At the time, AI’s commercial viability was speculative, but now John’s stake in the AI protocol is worth millions, and George wants his share.”,
“You are justifiably skeptical, wondering why George sat on his hands for years. Clearly, this claim will be met with a defense that it is barred by the statute of limitations.”,
“But then George hands you the parties’ ten year old partnership agreement, and you notice that it contains an arbitration provision. Is George out of luck, or not?”,
“Courts in a number of states have held that statutes of limitations do not apply to arbitration. These courts have deemed the language of such statutes—referencing “civil actions”—to be limited to judicial proceedings, i.e. not arbitration.”,
“A recent decision from Maryland drives home the point. As the court explained in Park Plus, Inc. v. Palisades of Towson, LLC, 478 Md. 35 (2022), “[w]hen parties agree to arbitrate a dispute, whether they realize it or not, they are also agreeing to curtail the role that courts may play in resolving their dispute.” Thus, for the Maryland court, the issue of timeliness was one of contract; if the parties did not contractually agree to limit the time in which an arbitration claim could be brought, the statute of limitations—which applied only to judicial actions—would not serve to preclude the claim.”,
“Other states, such as New York, have attempted to address the issue by statute. NY CPLR §7502(b) empowers a party to run to court to challenge an untimely claim brought in arbitration. But suppose an attorney is unaware of that statutory right and proceeds to file an answer to the arbitration demand? While §7502(b) still permits the party to assert the untimeliness of the claim in arbitration, the law says it is up to the arbitrators “in their sole discretion [to] apply or not apply the bar.” That amounts to a state legislature abdicating to an arbitrator the discretion to invoke his or her sense of equity to decide the substantive claims of parties.”,
“The takeaways are simple: first, determine the legal landscape in the states where you practice—what do the courts and legislature say about statutes of limitation and arbitration? Second, add the statute of limitations issue to the checklist of provisions for potential inclusion in arbitration contracts. If the parties (or at least your client) contemplate stale claims being subject to rejection for untimeliness, include language providing that an arbitration demand must be asserted before the expiration of the statute of limitations applicable to such a claim.”
]
},
{
“title”: “Good Grief”,
“date”: “January 2024”,
“body”: [
“It’s a safe bet that, when Elisabeth Kubler-Ross (working with terminally ill patients) conceived of the five stages of grief, she was not thinking about how to help attorneys pick a mediator.”,
“Since then, the five stages—denial, anger, bargaining, depression and acceptance—have become low hanging fruit for those seeking to describe the range of feelings that accompany almost every serious and trivial unpleasantry: divorce, the death of a pet, losing a bidding war to purchase a home, even paying taxes.”,
“And, yes, litigation.”,
“Spoiler alert: it’s no epiphany to say that litigation makes parties unhappy. And it’s equally uninformative to say that litigants often will come eye-to-eye with the five aspects of grief.”,
“But suppose we drill down. What if certain kinds of legal disputes trigger different aspects? Does knowing the aspects of grief that are most likely in play tell us anything about how to tackle settlement of these disputes? Perhaps.”,
“__H__Example One”,
“Having been injured in a rear-ender, the plaintiff has sued the driver, who is being defended by the insurance carrier. Once the plaintiff understands that the insurance carrier—and not the offending driver—stands in the way of settlement, she likely will view the lawsuit as transactional. Anger at the driver will not be an issue; resolution of the dispute involves bargaining and acceptance. And, for the insurance adjuster, the dispute is just another day at the office, solely an issue of bargaining.”,
“In many instances, a mediator’s involvement will be unnecessary. Experienced attorneys and insurance adjusters will lead the way to a satisfactory resolution. But suppose they are at loggerheads and want external help. What mediator attributes should they consider? Likely, the parties will be best served by a mediator with substantial subject matter experience—a retired judge, a personal injury attorney—who fully understands how to value the injuries in a case where liability is clearly established, and who will not be called upon to address emotional overtones that are not part of the dispute.”,
“__H__Example Two”,
“A seasoned executive joins a technology company in a senior level position; soon thereafter, he perceives he is being marginalized, quits and makes claims for compensation, bonuses and equity he believes he is entitled to receive.”,
“Anger propels the former employee to file suit. The company, too, is angry that this senior hire in whom they invested so much effort to recruit left for what they perceive to be unfounded reasons, requiring that they begin anew to fill this important slot. The respective attorneys separately recognize that, while they are capable of bargaining over the economic terms, their clients expect them to be strong advocates, and trying to quell their anger may undermine their client relationships. Thus, they may perceive that addressing the parties’ respective anger is something best addressed with a mediator’s help.”,
“Although the dispute arose in the context of a technology company, the crux of the dispute is not the company’s business activity but the clash presented by the differing expectations of the senior hire and the company. An appropriate mediator will be one experienced in the give and take of senior management controversies, who will convey to the parties in a no nonsense way the realities of litigation. The mediator will help the parties understand that, while over time the anger will dissipate, the short term future of litigation will carry with it substantial expense and uncertainty that is not conducive to an efficient economic result. While the mediator can contribute thoughts about appropriate structures for settlement, the attorneys likely can drive the bargaining process leading to the parties’ acceptance of the resolution.”,
“__H__Example Three”,
“Father-in-law invites his son-in-law into the business he created and nurtured for decades, only to perceive that his son-in-law is shunting him aside while usurping control.”,
“The resulting dispute is replete with emotion: depression, denial, anger. Family war has erupted; the daughter/wife is caught in the middle, as is the family matriarch. The legal issues, while complex, are ones the attorneys may be able to work through. However, the family dynamics dominate, presenting substantial obstacles to settlement. An appropriate mediator will be one equipped to engage in what likely will be emotionally laden conversations. Navigating a resolution requires the parties to consider their legal relationship in the broader context of the impact of the dispute on family. With the attorneys enlisting the mediator to address these non-legal, but significant issues, they can concentrate their efforts on the back-and-forth bargaining, with client acceptance dependent on the mediator’s efforts regarding the familial impact.”,
“Obviously, these are just a few, stylized examples. However, they hopefully illustrate how the presence or absence of specific emotional components can guide attorneys in their mediator selection, and how to best utilize the mediator to facilitate settlement.”
]
},
{
“title”: “Mediation Is Not Just for Settlement”,
“date”: “October 2023”,
“body”: [
“Experienced attorneys appreciate that there are benefits to mediation even when the case does not settle. Clients, however, do not always understand that. A client unfamiliar with the process may question whether an “unsuccessful” mediation was a waste of time. You can avoid an unpleasant client conversation by providing a bit of pre-mediation education.”,
“Here are a few talking points.”,
““Mediation enables me—your attorney—to get a better understanding of the full factual context of the dispute.” The information received during mediation provides a fuller perspective of the subtleties. Adversaries—both parties and attorneys—often are eager to elaborate on their perceptions of the strength of their case (and the weakness of yours), as they seek to substantiate their settlement positions. Even if the dispute does not settle, you and your client, having benefited from this “free discovery,” will leave the mediation armed with new information that will help you assess the relative merits of the opposition’s assertions, identify important follow-up topics for review, and provide guidance for preparing the examination of witnesses at trial. The information gained in mediation better equips you to champion your client’s position.”,
““As your attorney, I want to seize every opportunity to size up the other side.” While deposing adversarial parties provides visibility into their credibility and knowledge, the witnesses—well-prepared by their attorney—are likely to be guarded and minimally responsive. The more open-ended exchange that often occurs at mediation provides greater insight, enabling you to assess how an adversarial party will present to a judge or jury. You will be able to evaluate the party’s likeability, reasonableness, and knowledge. And let’s not forget about your opposing attorney. Mediation will enable you to assess the experience and presentation skills of your counterpart, and whether he or she has a full grasp of the key facts and legal issues, better positioning you for trial.”,
““You are my client, and I love you, but I still want to see how you behave in public.” It is risky to judge the strength of your client’s case based on what you have been told in the private confines of your conference room. Road testing the information provided by your client can be eye opening. Mediation enables you to evaluate your client’s version against the adversary’s alternative scenario. Seemingly rock-solid descriptions provided by your client may prove porous during a back-and-forth mediation discussion. Also, since likeability and credibility are relative, you will benefit from the opportunity to assess how your client comes across in comparison to the adverse party. Observing your client when confronted with push back is eye opening. Cases that seemed black and white develop shades of gray. (Indeed, it is that uncertainty that drives disputes toward settlement.) But if there is no settlement, you will leave the mediation better prepared to address newly discovered weaknesses at trial.”,
““There will be other opportunities to settle the dispute; the mediation is a beginning, not the end.” To avoid your client leaving mediation disappointed that no settlement was reached, you should explain that mediation almost always opens the door to further discussion. Especially in today’s technology connected world, mediation has become more of an ongoing process and less of a one-day event. A persistent mediator will ensure there are follow up discussions, either by phone or Zoom. You will bring to subsequent discussions the knowledge gained from the mediation. With a deeper understanding of the facts and how the parties are likely to come across at trial, you can better advise your client as to the appropriate contours for settlement.”
]
},
{
“title”: “Arbitration Snoozing and Losing”,
“date”: “July 2023”,
“body”: [
“In the matters I arbitrate, the attorneys usually appear for the preliminary conference fully prepared to discuss arbitration logistics and milestones. Occasionally, however, I encounter attorneys who have given these matters little, if any, thought, leaving their clients exposed to a scheduling and discovery order that may not accord with their needs.”,
“Posit the following: your new client is a principal in a business venture that has gone sideways. Colleagues have turned into enemies; acrimony has replaced friendship. The saga is complicated, convoluted and contradicted. As your client exits your office after your first meeting, you reach for the agreement she has left with you. Turning immediately to the Dispute Resolution section, you discover that it calls for arbitration of the dispute. No matter. It’s paying work and you have a job to do.”,
“Fast forward several weeks. The arbitration demand has been filed, the arbitrator has been appointed. You have received notice of a preliminary telephonic conference, scheduled for Monday morning.”,
“After a relaxing weekend, you call in at the appointed hour, looking forward to beginning your work week with the pleasantries of a low key “meet and greet” with the arbitrator and your adversary. Instead, you find yourself on the receiving end of a call with an arbitrator intent on establishing a soup-to-nuts schedule that envisions a substantive arbitration hearing in a few months’ time. The arbitrator expresses skepticism about discovery, indicating openness to, at most, a limited document exchange. And the parties should not even think about deposing experts, as the arbitrator firmly believes that expert reports are all that a party will need before examining the expert during the hearing.”,
“In short, you have run into the buzzsaw known in today’s vernacular as “muscular arbitration.””,
“__H__The Context”,
“As contractual arbitration provisions worked their way into more complex transactional documents, arbitration proceedings often came to resemble litigation. The attorneys addressing the conflict, trained to battle in federal and state courts, understandably brought their litigation toolbox to the arbitration. Consequently, discovery became expansive and expensive, parties took every imaginable opportunity to file dispositive (and non-dispositive) motions, and the hearings became increasingly prolonged, only to routinely be followed by post-arbitration efforts by the losing party to have the award vacated. In short, arbitration became unmoored from its historical underpinnings as a less formal, more economical and efficient way for parties to resolve a dispute and to move on with their commercial lives.”,
“Unsurprisingly, a countervailing push followed. Arbitration providers such as the American Arbitration Association sought to reinforce arbitration’s genesis and purpose. Rules were tweaked, and arbitrators were educated to recognize the inherent distinction between arbitration and litigation. Arbitrators—some more than others—began to “muscularly” assert more control over the arbitration process.”,
“__H__The Call to Action for Arbitration Attorneys”,
“Muscular arbitration need not undermine the fundamental reality that, as a “creature of contract,” arbitration remains the parties’ process, enabling them to fashion the contours of the proceeding in a manner to their liking. However, snoozing may mean losing. Attorneys bear the responsibility to proactively present the arbitrators with their clients’ needs and expectations for the arbitration. Failure to provide direction creates a vacuum that an arbitrator readily will fill.”,
“Definitive matters will be addressed as early as the initial preliminary conference between the arbitrator and the attorneys. For example, the AAA Practice Guide for preliminary hearings explains that “decisions will be made that will affect the course, scope, and cost of the arbitration. Expectations will be set. This is an opportunity for the tribunal to be sure that client expectations (typically for efficiency and speed) are in line with those of their advocates (who may believe more time is needed for discovery).” Accordingly, attorneys should be prepared to set forth their requirements for discovery and depositions, expert reports and testimony, dispositive motions, the time and place of the hearing, and pre- and post-hearing submissions.”,
“Optimally, attorneys for the competing parties will confer in advance of the conference and reach agreement on many of these issues. Arbitrators typically will consent to such arrangements so long as the agreement reasonably conforms to the goals of arbitration. In the absence of agreement, attorneys should be prepared to provide the arbitrator with their respective clients’ specific requests and their reasons for them.”,
“Arbitration, more so than litigation, provides the parties with an opportunity to shape the process. Those who squander this opportunity by not adequately preparing run the risk of an arbitrator deciding for them.”
]
},
{
“title”: “Sometimes There’s Not Much to Fight Over”,
“date”: “April 2023”,
“body”: [
“For this quarter’s newsletter, I want to share an insight that I took away from a business divorce where I served as arbitrator a couple of years ago.”,
“In many business divorces, the dominant issue is the valuation of the company (and, derivatively, the respective owners’ interests). The other issues—claims of self-dealing, inequitable compensation, usurpation of business opportunities—while meaningful, often are substantially less important economically compared to the question of how much the business is worth. Whether the business is being sold, or one of its owners is departing, a business divorce requires venturing into the world of valuation.”,
“The arbitration I reference followed standard operating procedure. Each party engaged a business valuation expert. The experts independently plowed through the company’s financial records and then delivered reports that set forth their respective valuation opinions. The reports were exchanged and submitted as exhibits in the arbitration. Both experts were present at the arbitration, prepared to testify.”,
“No surprise, the two expert reports reached meaningfully different bottom line conclusions. And another no surprise, the higher valuation came from the expert engaged by the departing owner seeking liquidation of his ownership interest.”,
“Drilling down, however, more striking than the different bottom line valuations were the reports’ similarities. Each expert had used the valuation methodology, frequently followed in these kinds of matters, that seeks to determine the anticipated future cash flows of the business, which are then discounted to present value. In other words, they were opining on what a dispassionate investor currently would pay for the stream of income he would expect to receive from the business in the years ahead.”,
“This methodology requires valuation experts to make assumptions about a host of underlying factors. What are the anticipated revenue growth rates, margins, and capital expenditure requirements of the business? What are the expected impacts of the future competitive, regulatory, interest and tax environments? What rate of return would a hypothetical investor require to invest in the business? What reductions are appropriate to reflect the absence of control that a minority shareholder would have?”,
“Since business valuation is not an exact science, there is always a degree of subjectivity involved, and business valuation experts can have different opinions regarding the underlying assumptions. And because they are interdependent, even minor differences in the underlying assumptions will impact the bottom-line valuation, sometimes significantly.”,
“When an expert games the system, he will make assumptions that are shown during cross-examination to be unrealistic and unreasonable. In those instances, it usually reflects poorly on the position of the party who proffered the expert.”,
“But that’s not what happened in the arbitration before me. Even though the experts reached substantially different valuation figures, their underlying assumptions were very much within shouting distance of one another. So close, in fact, that it was apparent that each of their reports would survive scrutiny.”,
“After Expert #1 concluded his direct testimony, he was asked questions along the following line: Have you read Expert #2’s report? Yes. While Expert #2’s assumed growth rate differs from yours, do you believe the rate he used is reasonable? Yes. While Expert #2’s assumed discount rate differs from yours, do you believe the rate he used is reasonable? Yes. And so on.”,
“Hearing this testimony, it was apparent to me that, as arbitrator, I would be required to decide the valuation issue based on competing experts’ opinions, each of which was both defensible and reasonable.”,
“I told counsel that I wanted their post-hearing briefs to provide guidance as to how I was to determine valuation. Assuming I found, as the evidence compellingly suggested, that each expert used (and thought the other used) reasonable foundational assumptions in arriving at their respective valuations, was I to inject my personal, non-expert views about the economic underpinnings of their analyses? Was I to apply whatever conclusions I reached about the parties’ respective behaviors in other aspects of the case to the valuation determination? Was I to split the numbers in half? None of these struck me as satisfyingly consistent with my obligations as an arbitrator.”,
“Of course, it never came to that. The parties and their counsel, after seeing the expert presentations unfold, and before the presentation of evidence concluded, successfully negotiated a resolution of the dispute.”,
“And the takeaway that I referenced at the outset? When representing a party in a business divorce, attorneys should: assess the economic importance of the valuation of the business and ownership interests to the overall dispute; if valuation is a dominant issue, engage at the earliest opportunity capable and credible business valuation experts, not charlatans whose reports and testimony will be disregarded as unreasonable and incredible; and utilize the resulting valuations to explore resolution, either independently or with the help of a mediator, at a sufficiently early juncture to avoid the costs and uncertainties of litigation or arbitration.”
]
},
{
“title”: “A Tailor Made Arbitration”,
“date”: “January 2023”,
“body”: [
“Happy New Year. I hope everyone had an enjoyable holiday season and I wish you a happy and healthy 2023.”,
“I am delighted to focus this year’s first newsletter on a real life example of how attentive and creative attorneys can benefit their clients’ interests with a tailored dispute resolution process that fits specific needs.”,
“In commercial disputes, one of the first things attorneys do is pick up the operative agreement, turn to the dispute resolution section, and determine whether the proceedings are destined for court or arbitration. Usually, once presented with the contractual road map, the attorneys typically move forward with the forum the parties designated in their agreement.”,
“Sometimes, even in the face of seemingly straightforward contract language, an attorney–not being a fan of arbitration–will cobble together an argument that challenges arbitrability, thereby setting off a layer of satellite, often expensive, litigation, in which a court is called upon to address the arbitrability issue.”,
“Only rarely does it work the other way. It is unusual for attorneys–with no contractual provision mandating arbitration–to take it upon themselves to submit a dispute to arbitration because they perceive it to be in their clients’ best interest to do so. Surprises do happen, however, as I recently witnessed.”,
“Not long ago I was engaged to serve as an arbitrator in a family owned business dispute/divorce. The two attorneys–each an extremely experienced and prominent practitioner–had unsuccessfully attempted to resolve the dispute through mediation. While the dispute remained, the attorneys did agree that litigation was not the optimal next step. Instead, they decided that their clients would benefit from submitting the dispute to arbitration.”,
“While I was not privy to their thought process or discussions, there may have been several motivating reasons for the attorneys to prefer arbitration: a desire to resolve the dispute more promptly than could be achieved via the judicial system; a preference for a private resolution process rather than the public filings and court hearings that would occur in litigation; and an opportunity to select an arbitrator experienced in business divorce matters, rather than leaving the selection process to the vagaries of the court system.”,
“Whatever the motivating reason(s), counsel took it upon themselves to fashion a tailored arbitration submission agreement. They included within it provisions specifying the length of the arbitration hearings, how the allotted time would be divided, and establishing parameters for certain relief, fees and costs.”,
“The takeaway for all practitioners is that attorneys need not limit themselves to whatever dispute resolution process may or may not have been drafted at the time of contract formation. Rather, they have an opportunity, when a dispute arises, to assess the nature of the dispute and the surrounding circumstances. In some instances the matter may best lend itself to resolution through arbitration. No matter how deep the substantive differences between their clients, attorneys may agree that there exists a mutual benefit in reaching an agreement as to the dispute resolution process to follow.”
]
},
{
“title”: “When a Mediator Is a Lawyer’s Best Friend”,
“date”: “October 2022”,
“body”: [
“Welcome to the Fourth Quarter, 2022 edition of my newsletter, in which I share hopefully relevant and interesting content pertaining to the arbitration and mediation of business disputes. I discussed in an earlier article ways in which an experienced mediator can facilitate an attorney’s efforts to cement a relationship with a new client. This quarter, I’d like to suggest how, even with established client relationships, attorneys can benefit from a mediator’s support.”,
“In recent mediations, I have had the following circumstances arise.”,
“__H__Example One: Walking Back Effective Advocacy”,
“In one instance, an attorney confided that his efforts to advocate for a long time client’s interests perhaps had been too successful. The client apparently enjoyed the Kool-Aid so much that she was now of the view that the case was stronger than the attorney felt it really was. At the mediation, the attorney was challenged to have the client view the case from an appropriately objective position instead of the rosy perspective that the attorney had presented in advocacy efforts. The attorney believed that a mediation resolution was achievable and in the client’s interest, however, he was concerned that the settlement opportunity would be lost unless the client was more realistic in her expectations.”,
“The attorney and I agreed that I, as the mediator, would take the lead in discussing with the client the objective realities presented by the litigation. In addition to communicating the substantive message, this provided an opportunity for me to convey to the client just how effective her attorney was as an advocate, helping to cement their relationship.”,
“__H__Example Two: The Unrealistic Client”,
“In another instance, the parties successfully navigated their competing assessments of the dispute to a point where the remaining gap in settlement figures was relatively narrow. However, a seeming impasse was reached. The attorney for one of the parties confided that he personally believed it was reasonable for his client to go the last mile, but was reluctant to communicate what would be perceived as a painful message because of his ongoing relationship with the client. We agreed that I, in my capacity as mediator, would lead this difficult discussion with the client, which proved successful.”,
“These are but two recent examples of how a mediation can involve more than the relationship between the litigating parties. Attorneys often perceive the merits of a settlement opportunity differently than their clients. While recognizing that, ultimately, their client’s wishes prevail, attorneys also understand that they have the responsibility to ensure a client fully appreciates the downside as well as the upside of rejecting a settlement opportunity. Delivering difficult messages can adversely impact the attorney’s interactions with the client, both as to the existing matter (if it does not settle) and the broader relationship. A mediator attuned to this dynamic can alleviate the attorney’s burden, by undertaking to serve as the bearer of challenging messages.”
]
}
];
var publications = [
{
“title”: “Individual Mediation as an Alternative to Mass Arbitration”,
“source”: “AAA-ICDR”,
“date”: “February 2025”
},
{
“title”: “Arbitration Is Not Litigation”,
“source”: “Connecticut Bar Association”,
“date”: “February 2024”
}
];
var feedbackQuotes = [
“I think you did as great a job as the last time and I will recommend you to my colleagues at the firm wholeheartedly. My client really enjoyed your style and input.”,
“You did an excellent job bringing the parties together today. Thank you again.”,
“I don’t know if you change styles when you feel it is necessary but the manner in which you handled this process it was artful.”,
“Thank you for your effective work, effort, and patience yesterday. It is very much appreciated. I hope to work with you in the future, and will be passing your name on to my colleagues.”,
“My client told me as we were walking out that I picked the right mediator, and I very much agree.”,
“Thank you for your excellent work on Wednesday. I was fully aware of how difficult this particular case was going to be to settle, but you handled every aspect of the mediation, including the end-game, expertly. As well as my adversary counsel and I may get along, there is no doubt in my mind that we could not have settled this case without you.”,
“Thanks for stewarding the parties through the process. Everyone on our side was duly impressed and appreciative of your knowledge of the case and your ability to separate the wheat from the chaff. Your time spent in preparation was evident.”,
“Thank you. It was an absolute pleasure.”,
“Thank you again. As always, you were very effective and great to work with.”,
“I look forward to working with you again in the future and will encourage others in our firm to think of you for their cases going forward.”,
“I greatly appreciate your management of this difficult situation on both sides. I don’t think a resolution would have been possible without it.”,
“I truly appreciate your assistance with this matter. Your efforts really enabled the parties to get this matter resolved. If someone is looking for a mediator, I know who to refer.”,
“It was a pleasure working with you. Thank you also for all your hard work in getting us to the finish line.”,
“We appreciated your hard work and creativity to help push this across the finish line.”,
“Many thanks for your help. It has been a pleasure working with you, and I hope our paths cross again.”,
“My clients were very pleased with how quickly and seamlessly you understood their position and predicament and were able to navigate the issues to settlement. It was a pleasure working with you.”,
“Your insight and patience were hugely helpful in moving this to a resolution.”,
“I enjoyed working with you. Thanks for using your excellent mediator skills to get the sides to an agreement!”,
“Thank you again for your invaluable assistance here.”,
“Whew. Thank you for your help in getting this one done.”,
“We certainly enjoy working with you as both a mediator and arbitrator and definitely recommend you when we can!”,
“Really enjoyed working with you. Thank you for your help in resolving this dispute.”,
“I thought you were a brilliant and very professional mediator and I also enjoyed working with you.”,
“I was really pleased with our mediation this year and appreciate all of your efforts. You came up in conversation with an old colleague as someone we’d both worked with this year and would love to utilize again in the future. I hope you take that as high praise coming from both a plaintiff and defense lawyer.”,
“Please know that you did a spectacular job mediating the dispute. My client was very appreciative of your efforts, and I am convinced it was your personal involvement in this matter that allowed the parties to resolve their dispute by agreement.”
];
function feedbackItem(q){
return ‘
‘ + q + ‘
‘;
}
function renderFeedback(){
document.getElementById(‘feedback-list’).innerHTML = feedbackQuotes.map(feedbackItem).join(”);
}
function newsletterRow(n, idx){
var clickable = n.body ? ‘ clickable’ : ”;
var attr = n.body ? ‘ data-idx=”‘+idx+'”‘ : ”;
return ‘
‘+n.title+’
‘+n.date+’
‘;
}
function publicationRow(p){
return ‘
‘+p.title+’
‘+p.source+’ · ‘+p.date+’
‘;
}
function renderHomePosts(){
document.getElementById(‘home-posts’).innerHTML = newsletters.slice(0,3).map(newsletterRow).join(”); wireNewsletterClicks(document.getElementById(‘home-posts’));
}
function renderArticleParagraph(p){
if(p.indexOf(‘__H__’) === 0){
return ‘
‘ + p.slice(5) + ‘
‘;
}
if(p.indexOf(‘__I__’) === 0){
return ‘
‘ + p.slice(5) + ‘
‘;
}
return ‘
‘ + p + ‘
‘;
}
function openNewsletter(idx){
var n = newsletters[idx];
if(!n || !n.body) return;
goTo(‘blog’);
var html = ‘
‘;
document.getElementById(‘newsletter-article-body’).innerHTML = html;
document.getElementById(‘newsletter-index’).style.display = ‘none’;
document.getElementById(‘newsletter-article’).style.display = ‘block’;
window.scrollTo({ top: 0, behavior: ‘smooth’ });
}
function closeNewsletter(){
document.getElementById(‘newsletter-article’).style.display = ‘none’;
document.getElementById(‘newsletter-index’).style.display = ‘block’;
}
function wireNewsletterClicks(container){
container.querySelectorAll(‘.post-row.clickable’).forEach(function(row){
row.addEventListener(‘click’, function(){
openNewsletter(parseInt(row.getAttribute(‘data-idx’), 10));
});
});
}
function renderBlogList(){
var listEl = document.getElementById(‘newsletter-list’);
listEl.innerHTML = newsletters.map(newsletterRow).join(”);
wireNewsletterClicks(listEl);
document.getElementById(‘publications-list’).innerHTML = publications.map(publicationRow).join(”);
document.getElementById(‘newsletter-back’).addEventListener(‘click’, closeNewsletter);
}
var trainingList = [
{
“title”: “NADN Training Retreat”,
“year”: “2026”
},
{
“title”: “NADN AI Tools for Distinguished Neutrals Workshop”,
“year”: “2025”
},
{
“title”: “Resolving Financial Disputes: Arbitration Strategies and Best Practices”,
“year”: “2025”
},
{
“title”: “AAA-ICDR-Mediation.org Panel Conference”,
“year”: “2025”
},
{
“title”: “Crafting Compliant AAA Awards: Structure, Fees, and Best Practices”,
“year”: “2024”
},
{
“title”: “Employee Mobility, Non-Competes and Other Employment Agreements”,
“year”: “2024”
},
{
“title”: “Disclosure Dynamics in Arbitration”,
“year”: “2024”
},
{
“title”: “AAA Tech Expo”,
“year”: “2024”
},
{
“title”: “Arbitrator Safety and Security”,
“year”: “2023”
},
{
“title”: “Awarding Attorney Fees, Costs and Post-Award Interest in Arbitrations”,
“year”: “2023”
},
{
“title”: “Process Essentials for AAA Arbitrators”,
“year”: “2022”
},
{
“title”: “Impartiality: Do You Know Where Your Biases Are?”,
“year”: “2021”
},
{
“title”: “Cyber Security: A Shared Responsibility”,
“year”: “2020”
},
{
“title”: “Case Finances: What Arbitrators Need to Know”,
“year”: “2019”
},
{
“title”: “Arbitrator Performance and Demeanor: Meeting Participant Expectations”,
“year”: “2018”
},
{
“title”: “AAA Exercising Arbitrator Discretion – A Look at Some Best Practices”,
“year”: “2017”
},
{
“title”: “The Ethics of eDiscovery in Arbitration”,
“year”: “2016”
},
{
“title”: “ADR and Emerging Technologies: The Future Has Arrived”,
“year”: “2015”
},
{
“title”: “Controlling Chaos in Mediation: Navigating the Behavioral Paradigm”,
“year”: “2014”
},
{
“title”: “11th Annual Spring Conference”,
“year”: “2009”
},
{
“title”: “Dealing with Delay Tactics in Arbitration”,
“year”: “2008”
},
{
“title”: “Pro Se: Managing Cases Involving Self-Represented Parties”,
“year”: “2006”
},
{
“title”: “Chairing an Arbitration Panel: Managing Procedures, Process and Dynamics”,
“year”: “2005”
},
{
“title”: “Arbitration Awards: Safeguarding, Deciding and Writing Awards”,
“year”: “2003”
},
{
“title”: “Construction Industry Arbitrator II Training: Advanced Case Management Issues”,
“year”: “2002”
},
{
“title”: “Arbitrator Update”,
“year”: “2001”
},
{
“title”: “Construction Industry Arbitrator Training”,
“year”: “2000”
},
{
“title”: “Commercial Arbitrator Training”,
“year”: “1999”
}
];
function trainingRow(t){
return ‘
‘+t.title+’
‘+t.year+’
‘;
}
function renderTraining(){
document.getElementById(‘training-content’).innerHTML = trainingList.map(trainingRow).join(”);
}
var mattersData = {
“Financial Services”: {
“Employment/Consultant Disputes”: [
“Investment advisor’s alleged improper solicitation of his former firm’s clients (three-person arbitration panel)”,
“Economic rights of senior employee following his departure from a broker-dealer (three-person arbitration panel)”,
“Employment and related claims between a principal and the financial services holding company with which he was affiliated”,
“Claims pertaining to the separation of a senior executive from a private equity firm (chair of three-person arbitration panel)”,
“Employment claims by insurance company executive terminated following sale of the company”,
“Financial asset manager’s failure to provide equity awards and other compensation to senior level executive”,
“Breach of trading company non-competition and non-solicitation provisions”,
“Recoupment of severance payments to terminated insurance company CEO based on violation of post-employment covenants (three-person panel)”,
“Compensation dispute between asset management company and portfolio manager”,
“Broker dealer’s termination of investment advisor”,
“Dispute regarding post-separation obligations between portfolio manager and health care hedge fund”,
“Issues arising from separation of principal from financial services company”,
“Post-termination claims between former Chief Revenue Officer and investment management firm”,
“Post-separation claims between individual financial advisors and registered investment advisory firm”,
“Claim by private equity firm’s former CFO for monies owed”,
“Claimed breach by former brokers of non-solicitation agreements with financial services firm”
],
“Business Divorce/Ownership Disputes”: [
“Claims by founder of insurance platform regarding valuation of ownership interest (chair of three-person panel)”,
“Dispute between owners of financial asset management company (chair of three-person panel)”,
“Entitlement of owner of payment processing company to payments following its dissolution”,
“Accounting between co-owners of financial management company”,
“Valuation of former executive’s participatory interests in family office investments”,
“Dispute between owners of event planning company”
],
“Breach of Contract/Other Commercial Disputes”: [
“Payment processor’s withholding of client’s reserve account funds (three-person arbitration panel)”,
“Lender’s claim for recovery of business financing”,
“Breach of merchant financing arrangement”,
“Dispute regarding payments for computer equipment”,
“Claims and counterclaims regarding obligations under an auto lease”,
“Claim for improper termination of business accounts by payment processor”,
“Adequacy of data processing services provided to credit union”,
“Company’s failure to repay sums advanced under a corporate financial services agreement”,
“Claim for failure to deliver shares and cash compensation to financial advisory consulting company”,
“Disputed entitlement to a placement agent’s incentive fee for its fundraising services to a private equity company”,
“Financial technology company’s responsibility for error causing loss to investment manager’s clients”,
“Law firm claim for fees generated in a dispute between investment management company and the fund for which it provided services”,
“Dispute as to whether investment bank’s efforts warranted the receipt of fees (chair of three-person arbitration panel)”,
“Bank’s obligations to customer arising out of third party’s fraudulent use of credit card”,
“Claims for finder’s fees for raising foreign investment funds (chair of three-person arbitration panel)”,
“Dispute between bank and platform provider regarding propriety of termination of digital assets (bitcoin) platform agreement (three-person arbitration panel)”,
“Investor’s claims that venture capital failed to perform adequate diligence prior to enticing substantial investment (chair of three-person arbitration panel)”,
“Placement agent’s claim for payments owed”,
“Project sponsor’s failure to repay investor for sums advanced”,
“Consumer claim against credit repair organization”,
“Dispute between lender and developer of senior housing”,
“Claim by factor for non-payment of monies due under services agreement”,
“Dispute between credit card lender and consumer”,
“Fair Debt Collection Practices Act dispute between consumer and national lender”,
“Improper trading claim by brokerage customer against investment advisory firm”,
“Dispute between investment partnership and charter school finance firm”
]
},
“Professional Practices”: {
“Ownership/Practice Disputes”: [
“Respective rights and interests of twelve veterinarians to a jointly owned animal hospital (three-person arbitration panel)”,
“Practice ownership and employment rights of physicians regarding their jointly owned practice”,
“Valuation and payments for ownership in a medical practice”,
“Dispute between medical practice and a physician seeking to separate within a short time after affiliating with the practice”,
“Entitlement to separation benefits for retiring law firm partner”,
“Financial issues arising in connection with separation of physician from medical practice”
],
“Employment/Consultant Disputes”: [
“Harassment claim brought by employees of a law firm against one of its principals”
],
“Contractual Disputes”: [
“Law firm’s entitlement to fees for services performed”,
“Claim by law firm transactional client as to whether its fees were properly paid by the other party to the transaction”
]
},
“Real Estate”: {
“Business Divorce/Ownership Disputes”: [
“Respective financial interests of the co-owners of investment real estate”,
“Shareholder dispute between hotel owners”,
“Breach of contract claims by one real estate investment partner against another”
],
“Employment/Consultant Disputes”: [
“Dispute between senior manager/advisor and shopping center developer”,
“Claim by former president of real estate company for monies owed following his termination”,
“Claim for compensation/profit share by manager against real estate developer”
],
“Contractual Disputes”: [
“Disagreement over buyer’s entitlement to return of deposit after failing to consummate purchase of residential estate”,
“Competing claims between property manager and owner/developer of multifamily residential properties”,
“Dispute regarding potential termination of license to access land abutting boundary between adjacent homes”,
“Dispute regarding indemnification obligations arising from environmental issues of property sold many years ago”,
“Claim that seller made material misrepresentations to buyer of investment real estate”,
“Dispute between property owners of adjoining estates”,
“Residential landlord-tenant dispute”,
“Claims between condominium association and property owner”,
“Dispute between commercial landlord and office tenant arising from displacement due to a casualty event”,
“Dispute between co-owners of commercial real estate”
]
},
“Franchise, Distribution, and Dealer”: {
“Franchise/Distribution Agreement Disputes”: [
“Compliance with terms of ice cream franchise agreement”,
“Termination rights/obligations of national food service franchisor”,
“Dispute between nationwide food distributor and point-of-sale operator of airport markets”,
“Class action between petroleum products distribution company and commercial customers”,
“Disagreement between coffee franchisor and franchisee”,
“Claims between food franchise company and multiple store franchisee”
],
“Business Divorce/Ownership Disputes”: [
“Dispute between owners/employees of a motorcycle franchise”,
“Competing claims regarding the economic interests of owners of truck dealerships and related real estate”
]
},
“Construction and Public Amenities”: {
“Contractual/Indemnification Disputes”: [
“Dispute between contractor and fire escape subcontractor”,
“Indemnification dispute between amusement park owner and ride manufacturer pertaining to the cause of injuries suffered by a park visitor”,
“Delay claim by construction manager on a public project”,
“Claims between owner and contractor arising out of a large residential home improvement project”
]
},
“Other Goods/Services”: {
“Business Divorce/Ownership Disputes”: [
“Valuation of equity interests of senior management team in a manufacturing company acquired by a private equity firm”,
“Claims arising out of a joint venture between scientist and operations executive to develop and market Covid tests”,
“Unfulfilled commitments following the business divorce of former owners of a carpet manufacturing and design company”,
“Equity and monetary interests of a founder and senior employee terminated by a software development company”,
“Dispute regarding the economic interest of a founder of a trade show business”,
“Claims by former owners of pharmacy against private equity purchaser for unrealized economic benefits (three-person panel)”,
“Claims arising under a settlement agreement between purchasers and sellers of interests in multiple nursing homes”,
“Claims by minority shareholder in oil distribution company and related real estate”,
“Shareholder dispute regarding moving company and related real estate”,
“Dispute between shareholders of a family-owned outdoor furniture company and associated real estate”,
“Dispute between co-owners of a quarry operation”,
“Dispute between owners and investors of digital business startup”,
“Dispute between corporate CEO and minority interest members”
],
“Employment/Consultant Disputes”: [
“Financial interests of long-time senior employee and orthotics company employer”,
“Services agreement claim between golf professional and the municipal owner of a public golf course”,
“Discrimination claims arising out of the separation of the Executive Director of a non-profit organization”,
“Claim by digital marketing company that employee was actively competing while employed”,
“Dispute between provider of hotel amenity products and its managing director of North American business operations”,
“Claim of wrongful termination between police officer and municipality”,
“Sexual harassment and retaliation claim by former municipal employee”,
“Claim that employer failed to indemnify employee from breach of non-competition agreement”
],
“Breach of Contract/Other Disputes”: [
“Claims for breach of contract by a manufacturing company’s former CEO, and counterclaims alleging misconduct by the CEO and a company director”,
“Emergency claim for injunctive relief by national consumer company against its container manufacturer”,
“Vendor’s claims regarding rights to continued presence on online marketplace”,
“Damages claimed to have resulted from the faulty installation and/or maintenance of agricultural scales”,
“Failure to pay for consulting and IT services”,
“Failure to pay obligations under staffing services agreement”,
“Dispute between software company and business customer”,
“Disagreement regarding payment terms for computer hardware”,
“Claims between manufacturer and retailer of ophthalmic products”,
“Dispute between heating company and customer”,
“Claim by credit protection company for unpaid fees”,
“Contractual dispute regarding software rights between developer and end user”,
“Law firm claim for unpaid fees”
]
},
“Personal Injury”: {
“Personal Injury Disputes”: [
“Claims against rideshare company (several)”
]
}
};
var matterCategories = Object.keys(mattersData);
function renderMattersContent(){
var html = ”;
matterCategories.forEach(function(cat){
var subs = mattersData[cat];
Object.keys(subs).forEach(function(sub){
var items = subs[sub];
html += ‘
positivelyneutral.com 