Arbitration, Mediation and Alternative Dispute Resolution

For many disputes, businesses are finding nonjudicial methods of resolution (including arbitration and mediation) increasingly attractive, as these mechanisms are more cost-effective, less time-consuming and less adversarial than traditional litigation.

In addition to representing parties in arbitrations, mediations and other forms of alternative dispute resolution (ADR), Duane Morris attorneys have experience as third-party neutrals for early case evaluations, as mediators and arbitrators in court-annexed and private proceedings, and in other neutral advisory or decision-making roles.

Appropriate case management seeks the best solutions for a client, and may include consideration of mediation, arbitration, mini-trials and other ADR methods. When cases are better suited for traditional litigation, the Duane Morris team has the resources of hundreds of trial attorneys.

Benefits of ADR

The benefits of mediation, arbitration and alternative dispute resolution derive from their versatility and independence from court bureaucracy. The general concept of ADR has gained wide support among legislatures and courts. Successful ADR programs ensure neutrality, provide a forum for mutual education and encourage the parties themselves, not just their lawyers, to join in the negotiating process. In some instances, ADR may afford quicker resolutions and lower costs than conventional court proceedings.

ADR may be particularly appropriate for clients who must maintain or strengthen business relationships with adversaries. Mediation and conciliation, as opposed to adversarial adjudication, may be especially helpful when there are ongoing business ties between potential litigants. In addition, ADR has the advantage of keeping witnesses off the witness stand, information out of the public record and the terms of a settlement confidential.

ADR also may be particularly well-suited to international disputes, since binding agreements reached in ADR may be enforced more efficiently in different countries than through a judgment in an American court.

Types of Proceedings

In place of courtroom judges, ADR proceedings typically use "neutrals" to guide the parties' own negotiations, render a decision or advise the parties. Many ADR professionals are former judges as well as attorneys or industry experts. Types of proceedings include:

  • Arbitration. The parties present their cases to a single arbitrator (or to a panel of arbitrators) who renders a decision that is usually binding and not appealable to a court. Duane Morris attorneys have represented clients in arbitrations conducted under the rules of the American Arbitration Association, the International Centre for Dispute Resolution, JAMS, the International Chamber of Commerce, the International Institute for Conflict Prevention and Resolution (CPR), the rules of specialized associations and under private contractual agreements.
  • "High-low" arbitration. The award is guaranteed to be within a specific range. If the arbitrator's award is higher or lower than the agreed range, the difference is disregarded.
  • Nonbinding Arbitration. An arbitrator's decision is used as a basis for further negotiation.
  • Mediation. Nonbinding mediation before an impartial mediator who is knowledgeable about the subject matter of the dispute is the most common ADR procedure used in recent years. A mediator acts as a facilitator in a series of individual and joint settlement discussions. The decision is nonbinding and parties can terminate the mediation at any time.
  • Mini-trials and simulated jury trials. Parties or their attorneys make their cases before a neutral or a simulated jury. No witnesses testify and the rules of evidence are relaxed. An advisory opinion from the "jury" serves as a basis for negotiation.
  • Conciliation. In this nonbinding process, a conciliator meets separately with each side and attempts to resolve differences. The parties normally do not meet or face each other in the conciliation process.
  • Other Methods. Other alternatives include settlement conferences before retired judges or professional mediators, early case evaluations and partnering, which is a collaborative contracting process focusing on dispute prevention that can be molded to fit the particular needs and resources of the parties.

Range of Services

We assist clients in selecting an appropriate ADR mechanism and drafting the ADR contract provisions, and we represent clients in the ADR process. Our lawyers also serve as neutrals and independent arbitrators and mediators. ADR techniques are used today in settlement negotiations for all types of complex cases.

Construction

We handle construction matters using all forms of alternative dispute resolution, including mini-trials, mediations and arbitrations, and we present strategies to attempt to resolve disputes promptly, amicably and short of trial. Our attorneys have considerable experience arbitrating complex, highly technical construction claims, contract and fraud disputes, bid protests, delay, differing site conditions, loss of productivity, extra work and inefficiency claims, as well as error and omission claims, design deficiency claims and a variety of other types of disputes.

Employment

Our employment and benefits lawyers draft mediation and arbitration clauses for employment contracts and advance client interests in mediation and arbitration proceedings, including employment discrimination claims. On the labor relations side, we represent clients in the collective bargaining process as well as in labor arbitration proceedings.

Commercial Disputes and Products Liability

Lawyers in our commercial litigation group handle ADR proceedings involving other commercial and business disputes, joint venture agreements, licensing agreements and other commercial contracts, products liability claim resolutions, allocation of environmental cleanup liability, loss allocation in toxic tort cases and disputes of intellectual property, to name a few.

Bankruptcy

Our bankruptcy lawyers serve as examiners, mediators and arbitrators in bankruptcy and insolvency matters.

International

Duane Morris attorneys are experienced in handling arbitrations under the major international arbitration conventions and rule systems, including the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the International Centre for Dispute Resolution (ICDR), the international affiliate of the American Arbitration Association (AAA), the International Institute for Conflict Prevention and Resolution (CPR), JAMS and the United Nations Commission on International Trade Law (UNCITRAL). We also represent clients involved in arbitration before the Austrian Centre for International Commercial Arbitration, the Dubai International Arbitration Centre, the Federation of Indian Chambers of Commerce and Industry Arbitration and Conciliation Tribunal (FACT), the Korean Commercial Board (KCAB), the Singapore International Arbitration Centre (SIAC) and the Stockholm Chamber of Commerce (SCC). In addition, our attorneys represent clients in international arbitration before specialized providers of arbitration services such as Association Internationale de Droit des Assurances Reinsurance and Insurance Arbitration Society, U.S. (ARIASoUS) as well as the Reinsurance Association of America.

Our Lawyers

The dispute resolution group consists of lawyers from many of the firm's practice and industry groups across the United States and in the United Kingdom, Singapore and Vietnam. Many of our lawyers perform services as neutrals, mediators, arbitrators and conciliators. Members of our dispute resolution group include former judges and prosecutors who bring valuable perspective to the representation of clients in ADR proceedings. The team includes a Fellow in the College of Commercial Arbitrators, as well as members of the American Arbitration Association (AAA) who are listed as AAA professionals. Others have been active in publishing articles and instructional materials about ADR. All of our lawyers are oriented toward resolving disputes, rather than perpetuating them.

Duane Morris is a sustaining member of the International Institute for Conflict Prevention and Resolution (CPR), a nonprofit initiative of 500 general counsel of major national and international corporations, law firms and prominent legal academics supporting private alternatives to the high costs of litigation.

Representative Matters

  • Yellowstone Mountain Club LLC v. Offshore Limited D and PCI (World Intellectual Property Organization Arbitration, 2012-2013) – succeeded in obtaining the transfer of certain domain names.
  • In re Arbitration between APM Terminals, North America, Inc. v. Horizon Lines, LLC and Horizon Lines of Alaska, LLC, No. 4169, Society of Maritime Arbitrators (Feb. 28, 2012).
  • Tuition Options, LLC v. ATI Enterprises, Inc. (Philadelphia arbitration 2012) – Represented defendant and counter-claimant company in the career education sector regarding complicated accounting and contractual issues pertaining to a servicing agreement.
  • Kiskadee Communications (Bermuda) Ltd v. Father, et al. (Bermuda arbitration, 2011-2012) – Represented plaintiff company with respect to rights to orbital satellite slot.
  • Sivad Holding Corporation v. Coastal Charter Corp. et al, No. 50 2010CA 019139 (Palm Beach Co. Cir. Ct. 2010) – Represented purchaser of 142-foot yacht in Florida state court, resulting in mediation of settlement.
  • Aurum Asset Managers, LLC v. Bradesco Companhia de Seguros, 441 F. App'x 822 (3d Cir. 2011) – Obtained a decision from the U.S. Court of Appeals for the Third Circuit affirming a district court decision made pursuant to the Foreign Sovereign Immunities Act that refused to confirm an arbitration award that had been entered against the client, a bank owned by the government of Brazil.
  • Swift v. Zynga, Inc. (Class Action Litigation) – obtained a dismissal with prejudice of a class action brought against Zynga Inc. under the California Unfair Competition Law and the Consumer Legal Remedies Act, following a successful motion to compel arbitration based on the U.S. Supreme Court's 2011 AT&T Mobility v. Concepcion decision. In the first application of that decision to an online terms of service agreement, the U.S. District Court for the Northern District of California found that the Zynga's modified click-wrap agreement was effective to bind the plaintiff to arbitrate the claims as an individual and not as a representative of the putative class.
  • Barnes v. Ontario Drive and Gear Ltd., 2010 WL 311648 (D.Md. 2010) - Defended a large manufacturer of recreational vehicles against litigation brought by a distributor whose agreement was terminated for violating the parties' contract, first by removing the matter to federal court. The federal court granted the manufacturer's motion to dismiss the court case and to compel arbitration.
  • Wilson-Vick v. Western Grinding, Inc. (San Mateo Superior Court, 2009-2010) – Represented a manufacturer of precision metal parts for use in the medical, aerospace, defense and communication industries and the majority of its officers and directors in an action for fraud and breach of contract brought by one of the officers and directors of the closely held company. Following extended mediation, settled the case on terms the clients found favorable.
  • Redesco, Inc. v. New World Museum (Harris County District Court of Texas) - Defended a cultural arts museum against a breach of contracts claim brought by artist and artist representative for alleged destruction of artwork. Mediation resulted in a settlement the client found favorable for less than one quarter of the original demand.
  • China Nat'l Bldg. Material Inv. Co., Ltd. V. BNK Int'l LLC, No. 09-CA-488-SS, 2009 U.S. Dist. LEXIS 113194 (W.D. Tex. Dec. 4, 2009) (Sparks, J.) – Obtained a $3.15 million judgment in the U.S. District Court for the Western District of Texas, Austin Division, confirming two arbitration awards entered by a Hong Kong arbitral tribunal in favor of a Chinese manufacturer.
  • Business Planning Systems, Inc. v. Personnel Decisions, Inc., (Del. Supreme Court, March 2009) - Counsel for business entity involving interpretation of the Federal Arbitration Act and the Delaware Uniform Arbitration Act. The Chancery Court entered a permanent injunction in favor of client that DUAA barred opponent's threatened claims. The Delaware Supreme Court affirmed on appeal.
  • DiGiacamo v. Ex'pression Center for New Media (Northern District of California, 2008-2009); As lead trial and arbitration counsel, prevailed in compelling case to arbitration and then obtained result at arbitration that client found favorable.
  • Johnson Matthey Inc. v. E.I. Du Pont De Nemours & Co. (Del.) – Lead counsel for Johnson Matthey in AAA arbitration relating to supply contracts and pricing issues. Secured settlement that client found favorable.
  • The Morrison-Knudsen/Government of Iran Case – arbitrated successfully at the U.S.-Iranian Claims Tribunal at the Hague a multimillion-dollar contract dispute over a major road designed by Morrison-Knudsen for the Iranian Ministry of Roads and Transportation.
  • Obtained on behalf of Sands Pennsylvania, Inc., a subsidiary of the Las Vegas Sands Corporation, a successful defense of a "baseball-style" AAA arbitration brought by the minority partners of the Sands Casino in Bethlehem, concerning the appropriate formula for calculating distributions under an operating agreement. The arbitrator's award preserved the Sands' methodology for calculating distributions, which permitted an additional $42 million in deductions over the 30-year useful life of the casino resort than figures proposed by the claimants.
  • Represented Kvaerner Industrial Constructors, Inc. in arbitration proceedings arising from the construction of an air separation plant in Freeport, Texas.
  • Obtained on behalf of ACTEL Middle East for Computer Equipment a confidential settlement following mediation of its breach of contract claims against Kellogg, Brown and Root International, Inc.
  • Obtained a $35 million award and attorneys' fees in favor of client following a four-week arbitration between joint-venture partners for the joint-venture partner's failure to pay a note and dividends due under the parties' agreement, together with a finding of no liability on a $59 million counterclaim against the client. Obtained confirmation of arbitration award from the U.S. District Court for the Eastern District of Pennsylvania.
  • Arbitration and litigation counsel to Aker Kvaerner Songer, Inc., in a series of cases arising from engineering, procurement and construction of Council Bluffs Energy Center Unit 4, a 790-megawatt supercritical coal-fired electric generating facility in Council Bluffs, Iowa.
  • Represented Kaiser Aluminum in arbitrating claims with Preussag, AG, under German law arising from an EPC contract for installation of an aluminum pot line near Stuttgart, Germany.

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Diversity

"In my discussions with Duane Morris leaders, they frequently speak about how diversity within their firm has enabled them to better serve their diverse clients. They understand that investing in diversity is a wise business decision that positions them for the marketplace of the future."

Don Liu
Senior VP, General Counsel & Corporate Secretary
Xerox Corporation

At Duane Morris, achieving diversity is paradoxical. By supporting and celebrating the differences of our attorneys - and the individual strengths that they bring - our firm culture expands, fostering creative solutions for our clients. But diversity at Duane Morris does not mean that we have a certain number of diverse attorneys; true diversity means that it is no longer noteworthy to see diverse lawyers leading our practice groups or managing client relationships. Ascending to positions of leadership and greater responsibility and providing the highest levels of client service is simply what is expected of all our lawyers. Diversity is another strong asset that adds to our collective abilities to meet the needs of our clients.

Our vision of diversity at Duane Morris is to realize an environment in which our lawyers' outstanding qualities are not just measured by ethnicity, race, gender and sexual orientation, but more importantly, that our lawyers are remarkable as excellent attorneys above all else. Only then can we celebrate our differences while focusing on the common pursuit of legal excellence which everyone shares at Duane Morris.

To reach this goal, Duane Morris understands that the familiar diversity strategies and policies that most law firms have are needed. Without demanding results from such policies, most law firms are bound to fail in even achieving numerical hiring and retention goals. Duane Morris has been proactive and ambitious in its efforts to improve diversity at the firm, and has set deadlines for reaching the milestones which mark our progress. To create a more diverse law firm, Duane Morris is:

  • Committed to strategically increasing our diversity levels, which is currently at 10 percent.
  • Bringing together our Diversity Committee and our Hiring and Retention Committee to raise diversity as an important factor in our hiring decisions.
  • Dedicated to improving retention by building upon our monitoring and mentoring program for all diverse associates.

Combining new initiatives with our longstanding diversity efforts, Duane Morris has seen increasingly positive results. In the Minority Law Journal's annual diversity survey of the nation's largest 260 firms, Duane Morris continued to improve its regional and national ranking, rising to number 136 of all firms surveyed. Our strides in Philadelphia are encouraging; in a city known for both the racial diversity of its population and the lack thereof in its law firms, Duane Morris is one of only two law firms to exceed the national average of minority partners at all law firms. Additionally, Duane Morris leads all national law firms based in Philadelphia in the number of Latino partners. Nearly 30 percent of all of our attorneys are women, and more than 20 percent of our partners are women.

In our approach to diversity, progress in racial, gender and cultural diversity cannot be measured in numbers alone. Duane Morris has focused our diversity initiatives on both increasing the number of diverse associates and addressing the challenges diverse attorneys face in building lasting careers and rising to senior and leadership positions. While several of our key practice groups are led by diverse partners and female partners, Duane Morris endeavors to create a culture which will foster a deep pool of such attorneys who can then develop into the firm's future leaders. Duane Morris understands that simply hiring diverse associates will not change the diversity of the firm; Duane Morris is working to mentor and retain diverse associates so that our progress in racial, gender and cultural diversity is also reflected at the highest levels of leadership within the firm.

Our progress on gender diversity has been profound. We have no glass ceilings: women hold positions of leadership at all levels of management at the firm. Women lead a number of our key practice groups, including our Energy, Immigration and International practices, and serve on the firm's Executive Committee. The success of our female attorneys at Duane Morris has not gone unnoticed. Barbara Adams was chair of the firm's Finance Practice until her appointment by Pennsylvania Governor Edward Rendell to serve as General Counsel of the Commonwealth. In 2004, our longtime General Counsel, Gene E.K. Pratter, was approved by the United States Senate and is now a judge for the U.S. District Court for the Eastern District of Pennsylvania.

Our efforts to improve diversity extend beyond our firm's walls. The chair of our Diversity Committee, Nolan N. Atkinson, Jr., recognized the lack of diversity in Philadelphia's legal community and formed the Philadelphia Diversity Law Group. Nolan now serves as the chair of the organization, a consortium of 25 law firms and corporations that commits to employing at least one diverse first-year law student each as a summer associate. From this program, law students of diverse backgrounds gain access to what was once an exclusive legal community, and now have the opportunity to learn and develop their legal careers with experience at Philadelphia's top law firms.

In addition to our involvement in the Philadelphia area, Duane Morris has increased our presence at national conferences and events focused on diversity. We sponsor the Hispanic National Bar Association and its job fair. Duane Morris is also a longtime supporter and sponsor of the Equality Forum, a national gay and lesbian rights organization. Duane Morris continues to sponsor the Minority Corporate Counsel Association, and is active in other associations of diverse attorneys including: the Asian American Bar Association of the Delaware Valley; the Charles Houston Bar Association; Cuban Bar Association; Korean American Lawyers Association; National American Indian Housing Counsel and the National Bar Association.

The challenge of improving gender, ethnic and cultural diversity at Duane Morris is an ongoing effort that has the support of the entire firm. Duane Morris has been at the vanguard in supporting gender diversity throughout the firm beginning a generation ago. Our diversity programs are leading to similar success in improving racial and national origin diversity at Duane Morris. But even as we share these examples of Duane Morris attorneys and our involvement in numerous legal events, associations and programs for diversity, our hope is that such examples will no longer be necessary to mention in the future. We hope that through our efforts, and the efforts of other law firms, these stories become so common that they are no longer the remarkable accomplishments they are today, but simply routine aspects of the legal world tomorrow.