ADR - Law Firms An ADR Practice That Touches All Bases

Editor: Ms. Korchin, would you tell our readers something about your career experience?

Korchin: I have been a Holland & Knight partner since 1987, and I came to the firm after having been a civil trial partner at another firm. As a civil trial lawyer for over 30 years, I have represented both plaintiffs and defendants before state and federal trial and appellate courts. At Holland & Knight I have represented a great variety of clients in complex business disputes, including four national airlines, a multinational aircraft manufacturer, a national boat manufacturer, national engineering and construction firms, financial institutions, a national sporting goods retailer, national fast food chains, a national broadcasting corporation, charitable organizations and high net worth individuals, including foreign nationals.

Editor: How did you come to Holland & Knight? What attracted you to the firm?

Korchin: Holland & Knight is a firm with a long and impressive state-wide history in Florida. It has always had a reputation for a culture of client service and of supportiveness among its partners. There is a strong collegial feeling at the firm, and people work well together to accomplish positive results. All of that was very attractive to me. Today, Holland &Knight is the 15th largest law firm in the world, with 26 U.S. and six foreign offices.

Editor: You are engaged in both arbitration and mediation and litigation. For starters, would you give us an overview of the plusses and minuses of each?

Korchin: Mediation is a non-binding process which allows two parties who want to resolve a dispute to keep control of the decisions themselves. If you have parties who want to reach a resolution, mediation is the best process because they retain control themselves over the process. When one party is not interested in resolving the matter, arbitration or litigation becomes the appropriate necessary process.

Arbitration, which must be agreed upon by the parties, allows them to select the decision-maker or panel of decision-makers. When you file an action in court, you do not have control over choosing the decision-maker. The judge may have a knowledge of sophisticated commercial transactions, for example, but he or she may not. In arbitration you can ensure that the arbitrator has the experience and knowledge necessary to make an informed and prudent decision. If you are going to use arbitration, it is advisable to have a carefully drawn arbitration agreement in place before the dispute arises. That agreement should recite how the arbitrator or panel of arbitrators will be chosen and the experience the arbitrator(s) must have. That is certainly an advantage over litigation. In arbitration, however, you are required to pay for the time of the decision-maker, and if the matter is a large-sum commercial dispute for which a panel of three arbitrators is selected, the arbitrators' fees could be substantial. In addition, one side may refuse to pay for the decision-makers' time, despite its commitment in the arbitration agreement to pay one-half the fees during the process. In that event the other side may have to cover the entire cost of the proceeding until the Final Award is made. The cost of the arbitration, including arbitrators' fees, would then be added to the damages in the Final Award.

In 2003 I participated in a panel for the American Corporate Counsel Association with four in-house counsel of public companies. The in-house counsel felt that in certain types of cases they preferred litigation because they believed trial judges are more inclined than arbitrators to act decisively and to dismiss a matter early or grant summary judgment. This is an issue that I have raised with the American Arbitration Association, which disagrees that such is the case.

Editor: What makes for a good advocate in arbitration or mediation, and is this different from the makeup of a good litigator?

Korchin: An advocate in mediation has a role that is different from that taken by an advocate in arbitration or litigation. Mediation advocates must bring their opponents around to their position to a certain extent, and an ability to persuade the opponent is important. In arbitration or litigation, the advocate must convince a neutral party of the merit of his or her position, that is, the arbitrator or the judge or jury, not his opponent. People who are advocates in litigation are governed by state or federal rules on how a trial is conducted, and advocates in arbitration are governed by an arbitration agreement and the rules selected in that agreement. If the arbitration agreement is not well drafted, an arbitration advocate may not be able to obtain adequate discovery. If the two sides in an arbitration do not agree on depositions, for example, the matter is in the discretion of the arbitrator. Being in arbitration without a well-drafted arbitration agreement can be a difficult place to be.

A generalization applicable to all three forums is that an advocate will do a better job if he or she understands the strengths and weaknesses of the other side's case as well as his or her own case.

Editor: Please tell us about Holland & Knight's ADR practice.

Korchin: Holland & Knight's ADR practice includes lawyers from numerous practice groups, including construction, employment, international, maritime and securities. We have offices from coast to coast, as well as several overseas offices. Holland & Knight's international ADR practice has an excellent reputation. Many multinational companies and foreign companies or individuals favor arbitration over court proceedings. If you have an arbitration agreement, you can determine where the arbitration will take place and the law that will govern the procedure. For example, if one corporation is located in Brazil and the other in England, the parties may decide that they want the dispute arbitrated in Florida or New York. When arbitration awards are entered, they are often enforceable in other countries.

Our Tokyo partner Richard Eastman is engaged in an active international arbitration practice. Several people in our New York office handle international arbitrations, including Marisa Marinelli, who represents clients from Mexico and South America. Barry Vasios of New York is representing insureds in London and Bermuda-based arbitrations against foreign underwriters. Connie Barnhart, who is a corporate partner in our Fort Lauderdale and New York offices, handles the drafting of alternative dispute resolution provisions in large contractual undertakings. Her language skills have taken her to most of the Nordic countries, and she speaks Spanish and conducts a Latin America practice as well. George Mencio and Fred Rodriguez of our Miami office have tried international arbitration cases under the rules of the International Chamber of Commerce and other international forums.

Editor: To the extent that the firm's ADR lawyers engage in designing conflict resolution structures as well as arbitrating and mediating, I gather the group is a resource for, say, the transactional lawyers at the corporate end of the firm?

Korchin: Absolutely. The various transactional groups call upon our ADR lawyers' expertise when drafting arbitration and mediation clauses. We are in a position to tailor language to fit each particular situation. Importantly, our ADR lawyers have also worked with in-house counsel to design mandatory ADR plans for major companies. Michael Ranallo and Robert Vyverberg, of our Chicago office assisted in the design of a two-step mediation and arbitration plan for a corporate employer with its employees, enforceable in all states, except California.

Editor: Please tell us about the value of having your ADR advocates serve as neutrals.

Korchin: If you have been a neutral, you have a better idea of what works with the decision-makers and what does not. You are able to understand what is persuasive and what is simply extraneous. The experience of having been a neutral means that you have a sense of what is in the mind of the person charged with evaluating the positions the parties have taken. In addition, sitting as a neutral is always something of a learning experience. It is fascinating and rewarding to observe ADR practitioners at the top of their form, and invariably you come away with something that is going to be helpful in your own advocacy. Holland & Knight has many well respected neutrals, including former U.S. District Judge William Sessions, former Florida Supreme Court Justice Stephen Grimes, and former Third District Court of Appeal of Florida Judge Rodolfo ("Rudy") Sorondo.

Editor: In the situation where ADR is not already mandated by a contract between the parties, what are the factors that would lead you to advise your client to attempt to utilize ADR to address the dispute?

Korchin: On one occasion I advised a seller of a defense factory to use pre-suit mediation with the buyer to protect the facility's value. The seller was a manufacturer of defense products, and the buyer was concerned with the quality assurance procedures in place. A publicly-documented lawsuit could have destroyed the reputation of the company with the government and eliminated the market for the company's products. Confidential mediation, was in the interests of both parties and served to protect the value of the facility which had already been sold.

There is no single rule governing when ADR ought to be brought into play, but there are plenty of situations that arise where a careful analysis will point in that direction to preserve the relationship of the parties, the value of the asset or the parties' reputations.

Editor: You have engaged in arbitration under a variety of arbitration rules. Do you have a preference?

Korchin: Some of my colleagues prefer the American Arbitration Association rules to those of the International Chamber of Commerce because under the latter the ICC Court is an additional layer in the procedure. There, the ICC Court must approve the decision of the arbitrator. The AAA does not approve decisions of arbitrators acting under AAA rules.

Editor: Would you tell us about Holland & Knight's Settlement Counsel Program? What is the origin of this program?

Korchin: Our Settlement Counsel Program derives from Holland & Knight's commitment to corporate counsel wherein we promise to explore settlement options and perform an early case evaluation when we take a litigation matter. That is an economic path to an early disposition of cases. The clients who have used this process have found in it a separate sounding board from litigation counsel in coming up with settlement strategies. It has been very well received.

Editor: And it was utilized with some success in the Bridgestone/Firestone matter?

Korchin: Yes. In 2003 Bridgestone/ Firestone and Holland & Knight were honored by the CPR Institute for Dispute Resolution for outstanding practical achievements because of the company's Settlement Counsel Program. It was Bridgestone/Firestone's experience that a small group of settlement counsel - focused on settlement values - was far more efficient than numerous litigators in repetitive claims across a variety of jurisdictions. Thomas Woodrow and Fran Prell of Chicago and Lee Teichner of Miami were the national settlement counsel. It is, of course, less expensive to have a few people educated on these values as opposed to someone in each state where an action is pending.

For Holland & Knight and Bridgestone/Firestone this was a tremendous success.

Editor: Are there trends in ADR that corporate counsel should be alerted to?

Korchin: The case law is always developing in ADR. Today almost all corporate counsel are knowledgeable in ADR, and most are engaged in early case evaluation themselves. They also analyze claims from a cost benefit perspective. If a claim has merit, most corporate counsel try to resolve it, and they will utilize mediation if they believe there is someone on the other side interested in resolving the matter.

Published August 1, 2005.