Description of Services
Arbitration is the most commonly employed form of alternate dispute resolution and most closely resembles traditional litigation. Like a lawsuit, there is a trial at which evidence is taken and both parties have a full opportunity to present their case and the decision is enforceable virtually anywhere in the world. However, arbitration provides a number of significant advantages over litigation which make it an increasingly common choice by sophisticated parties. Here are some of the considerations which parties should consider in choosing arbitration:
The parties make the rules
One of the most important differences between arbitration and judicial litigation is that the parties are free to adopt the procedural rules that best suit them. Thus, they are free to determine the scope and degree of discovery that is appropriate, the admissibility of certain types of evidence, the extent to which direct evidence can be presented in written form, and any other procedures they wish consistent with basic requirements of due process. The parties can agree on their own rules or adopt one of the standard sets of rules that have been published by organizations such as the American Arbitration Association, CPR, the ICC and others. And, they are free to modify those rules as they see fit. To the extent the parties have not agreed, Mr. Graff will apply a common sense approach, designed to maximize efficiency without interfering with the parties’ ability to present their case.
The parties make the schedule
At the outset of any arbitration before him, Mr. Graff will hold a conference with the parties and, working with them, formulate a schedule for handling of the matter from start to finish. That schedule will be realistically designed to allow the parties to fully prepare their cases without undue delay and firm commitments will be made by the parties, their counsel and Mr. Graff to make themselves available when needed. If, for good reason, changes need to be made, they will be done with the knowledge and participation of all.
The parties choose their “judge”
A major benefit if arbitration is that the parties can select the person who is will hear the matter, rather than be faced with the “luck of the draw” that exists in most courts. If they choose Mr. Graff, they will have the benefit of his extensive substantive knowledge and experience in intellectual property and commercial law, as well as sensitivity to the commercial considerations which underlie the dispute and the ability to understand the most sophisticated technological issues that may arise. This is coupled with a willingness to listen and a degree of intellectual curiosity and honesty that will permit parties to fully express their positions and feel confident that they will be understood and given their due weight.
The proceedings are private
It is common today for parties who have been sued in court to first learn about the case from law firms seeking to represent them or even from newspaper accounts. Lawsuits are public proceedings and pleadings and judicial proceedings are freely available to anyone with an internet connection. On the other hand, arbitrations are completely private; the proceedings are entirely confidential and no one other than the participants knows what transpires.
The proceedings are final
Often times, a decision or a verdict in a lawsuit is just the first step in a lengthy process of motions and appeals. This is rarely true in arbitration. Although it may be necessary to confirm an arbitration award in court to enforce it, the procedure to do so is expedited and the bases for challenging an award are extremely limited. Mr. Graff has rendered more than hundred arbitration award during his career; only a small handful have ever been challenged and none have been overturned.
Litigation and arbitration have one thing in common; someone wins and someone loses. However, the focus of mediation is to assist parties to resolve their disputes by agreement that, for various reasons, may be difficult for them to reach on their own. When facilitated by someone who is as experienced as Mr. Graff, both in resolving disputes and negotiating commercial transactions, mediation can not only minimize the risk, expense and delay of litigation, but can often put both parties in a better position than they would have been possible if the dispute were resolved by other means. Some of the advantages of mediation are discussed below.
Mediation Promotes Settlement
In almost all commercial cases, a reasonable settlement is preferable to permitting the case to go to trial. Even if a party is certain of the correctness of its position, settlement eliminates the risk of erroneous results and significantly reduces cost. However, there are often impediments reaching an agreement that can be difficult or impossible to overcome without outside help. Even the most sophisticated and well advised parties often fail to appreciate the strengths of an adversary’s case or weaknesses of their own. And, even if they are aware of their weaknesses, they are understandably reluctant to reflect their real concerns in their settlement posture out of fear of appearing weak. As a result parties tend to exaggerate their confidence in their positions and frame their settlement positions accordingly. Any, they usually assume that their adversaries are doing the same, so that even a reasonable offer will be viewed with suspicion that it is not the best that can be obtained. Other factors which can impede settlement include the personal animosities and the lack of direct exposure of the persons who make the decisions to the arguments and positions taken by the other side.
Mediation can help the parties overcome these obstacles. During the course of mediation, the decision makers will have a full opportunity to hear the arguments and positions taken by the other side, so that there is no filtering and both parties have a realistic view of what they are up against. Following that presentation, Mr. Graff will meet with each party in confidence and will explore every aspect of their case in confidence and candor. He will review their interests, goals and priorities in depth, as well as the evidence and the legal theories, and will provide each party with a candid neutral assessment of the type of agreement that reasonably be expected and suggestions as to possible solutions. However, nothing said in those meetings will be conveyed to the other side unless he is expressly authorized to do so, so that the parties need not fear that they will prejudice their litigation positions or convey their weaknesses or concerns to their adversary.
Mediation promotes the parties’ commercial goals
A sophisticated commercial mediator knows that the real goal of the parties in most commercial disputes is not simply to win or lose, but to maximize their opportunities going forward and minimize the negative impact of any settlement. Thus, commercial settlements often involve quite a bit more than the payment of money and an exchange of releases. Rather, they are really business transactions, often highly complex ones, based not simply on providing a remedy for alleged past misdeeds but on providing a framework for both parties to go forward with their businesses without an undue risk of future clashes.
Achieving such a result between parties who are in the midst of a bitter, hard fought dispute is not easy. It requires a number of skills and abilities which go beyond understanding and applying the law, including the ability to understand and appreciate the commercial needs of both parties, the ability to help each side understand and appreciate the legitimate needs and concerns of the other party and the ability to structure a commercial transaction that not only provides compensation for past injury but meets the ongoing commercial needs of both parties in a way that minimizes the likelihood of future disputes. Most importantly, it requires a degree of creativity that can only come from years of experience, not only in settling cases, but in negotiating consensual transactions in a variety of different fields, coupled with the ability to quickly but surely learn and accommodate the particular factors, including the personalities of the people involved, that make every settlement unique.
Neutral evaluation is a process that permits one or both parties to obtain an independent, neutral view of the strengths and weaknesses of their legal positions prior to a formal trial or hearing and without any binding consequences. As practiced by Mr. Graff, it can be conducted with or without the participation of both parties to a dispute. Alternatively, it can provide a means for both sides of an ongoing dispute, even if they are unwilling or unable to settle, to better understand and prepare themselves to litigate a matter by concentrating on the real issues between them and without wasting time, effort and money on matters that are not really in dispute or are of tangential importance.
Single party neutral evaluation:
This is a relatively new type of dispute resolution service that Mr. Graff has pioneered. It is similar, in some ways, to a mock trial without a jury, in that the party presents its positions, as well as the anticipated positions of its adversary, in an abbreviated fashion, to a neutral evaluator and gets the benefit of a confidential, independent advance view of the likelihood of success of its arguments and positions. However, in addition to giving his views as to the likely outcome, Mr. Graff will draw on his extensive experience as a trial lawyer and arbitrator to provide suggestions and recommendations to assist the party in developing and presenting its case as well as suggestions for promoting an advantageous settlement.
Multiparty Neutral Evaluation
Multiparty neutral evaluation is a dispute resolution technique that combines features of arbitration and mediation. It can be used, either separately or in combination with mediation, to promote settlement or narrow the issues in dispute. Like arbitration, neutral evaluation focuses on evaluating the merits of the legal and factual issues of the dispute and predicting its likely outcome, as opposed to promoting compromise or a commercial resolution of the dispute. However, unlike arbitration, the outcome is non-binding, so that, after the results are announced, the parties are free to re-evaluate their positions and can either more intelligently proceed to resolve the dispute or, if they remain unable to do so, focus their attention more clearly on the critical aspects of their case.
Choosing an Evaluator
The choice of an evaluator should not be taken lightly. It requires a combination of skills that are not easy to find, a combination of judicial temperament, substantive specialized legal expertise and business acumen that are hard to find in a single individual. Here are some reasons to consider using Mr. Graff:
Objectivity: As a true neutral, with no ongoing relationship and no prospective role in representing the client in the litigation itself, Mr. Graff can provide a confidential, truly unbiased and objective view of the merits and prospects without any pressure to tell people what they want to hear. As an evaluator, he will provide a “reality check” to help evaluate positions being advocated by persons within the party’s organization or its outside counsel without having anything invested in any position and without any adverse consequences if the arguments do not succeed.
Expertise: As someone with many years of litigation and transactional experience, handling matters for clients in ia wide range of industries, Mr. Graff can readily bring to bear broad expertise in a variety of disciplines, including patents, trademarks, copyrights , trade secrets, and rights of privacy and publicity, including issues of infringement or misappropriation, as well as commercial issues arising from licensing and acquisitions of intellectual property, and provide the parties and their counsel with insights and ideas that the party’s own advisers may have missed.
Efficiency: When a party retains Mr. Graff as an evaluator, it gets Mr. Graff. Nothing is delegated to an inexperienced associate or anyone else. When he knows the answer to a legal question, he will respond quickly, backed up with relevant citations to statutes and judicial authorities. If he doesn’t know the answer, he knows where to find it. He has the ability to quickly absorb the factual issues and get to the heart of the matter, coupled with the type of judgment that can only be obtained through maturity and experience. The result is to provide a speedy, economical, and realistic insight into the likely outcome of a dispute in a confidential environment without adverse consequences and with the opportunity to adjust the party’s actions so as to maximize its prospects of success or minimize its losses.
©2007 George L. Graff