Helping you resolve issues, while avoiding litigation.

The Alternative Dispute Resolution Group provides assistance with mediation, arbitration, and internal dispute resolution programs. Our lawyers serve both as mediators and as arbitrators through various organizations, such as the CPR Institute for Dispute Resolution, the American Arbitration Association, and the International Chamber of Commerce.

To implement alternative dispute resolution (ADR) in our litigation practice, our lawyers are trained to work with our clients at the beginning of each case. We begin by investigating and analyzing what really is at stake for our clients and for their opponents, what resources are available to address the underlying issues, and what business resolutions can be tailored to address those interests. We also work to identify the tangible and intangible costs of litigation and non-litigation resolutions, the likely outcomes of each approach, and the possible results.

If our client elects to use ADR processes, we work to position our client to make the most of such proceedings. We assist in developing creative negotiating strategies and draft presentations to educate the neutral facilitator and the opposition’s business executives; then we help structure the process. Once the proceeding is underway, we participate actively to achieve a mutually acceptable resolution.

Mediation

When mediation is the chosen approach, we develop negotiating strategies with our client, draft presentations to educate all parties, and work to structure the mediation process for a successful resolution. We have assisted our clients in using ADR mediation successfully to resolve antitrust, construction, commercial, corporate governance, education, equipment and systems supply, employment and labor, energy, environmental, insurance, minority shareholder, patent infringement, product liability, securities, and utility claims.

Arbitration

We represent our clients in arbitration proceedings, including before arbitral tribunals under the auspices of the American Arbitration Association, the International Chamber of Commerce, the London Court of International Arbitration, and the International Center for Settlement of Investment Disputes. We are experienced in the arbitration rules of all the major arbitral bodies, both domestic and international, as well as in international rules, such as UNCITRAL Rules, which are used by ad hoc arbitral tribunals.

Many of our lawyers are frequently selected to act as arbitrators—either as a sole arbitrator or as a party-appointed or neutral chair of an arbitral panel. In that capacity, our lawyers have arbitrated a wide range of disputes, especially for large complex commercial cases, including the following types of matters: 

  • Venture capital 
  • Corporate acquisition earn-outs 
  • Close corporation competing interests 
  • Software and hardware sales and performance 
  • Energy delivery 
  • Environmental matters 
  • Banking matters 
  • Business consultancies and international transactions

One of Foley Hoag’s arbitral professionals recently wrote the materials for a continuing legal education program for in-house counsel and others regarding key considerations in choosing arbitration versus in-court litigation. That professional also co-chaired the program, with Chief Judge W. G. Young U.S.D.C., Mass.

Internal Dispute Resolution Programs

In addition to assisting our clients with existing disputes, we also audit our clients’ existing internal dispute resolution programs and mechanisms, and assist in designing new or different ones. For workplace applications, these programs range from traditional grievance procedures to employee participation programs. We also provide training for our clients in the design and implementation of their internal dispute resolution programs.

Representative Experience

Foley Hoag has a breadth of experience in assisting clients in using forms of ADR. Our mediation and arbitration work includes widely diverse matters, such as banking software installations in South America, Arabian Gulf technology distribution, and nuclear power plant procurement.

In addition, our attorneys have lectured widely on ADR topics at forums ranging from Yale Law School to the American Bar Association. A few examples of our work in this area include: 

  • Assisted in the design of an in-house mediation program for a well-known ice cream manufacturer. The company wanted an internal dispute resolution mechanism that emphasized employee participation and was consistent with a “bottom-up” management style. 
  • Advised a large public transportation agency on the design of a program for the resolution of discrimination, harassment and retaliation complaints. 
  • Assisted a major manufacturer of diagnostic medical equipment in resolving a costly and time-consuming antitrust and patent infringement litigation. Working with the company’s in-house lawyers and key business executives, we analyzed the merits of the claims, the amount of potential damages and the business objectives the client hoped to achieve. After two days of mediation, the matter was satisfactorily resolved, at minimal additional expense. 
  • Represented various U.S. and international corporate entities in several proceedings before the AAA International Dispute Resolution Center or the ICC. The matters included instrumentation controls, product distribution and ship construction. 
  • Represented various foreign government and state-owned business entities in several proceedings before the ICC concerning various matters, such as patents, gold mines, hydroelectric power, nuclear power and even banana imports. 
  • Represented a major international owner of retail supermarket chains in environmental services arbitration. 
  • Resolved, through court-ordered mediation, an Americans with Disabilities Act litigation brought against a Massachusetts corporation in the United States District Court for the Southern District of Florida. The mediated solution was based on non-monetary elements of unique value to the parties. 
  • Retained by a large corporation to assist in efforts to settle, through mediation, a complex antitrust and patent infringement litigation pending in North Carolina. Although the corporation had litigation counsel, we were separately retained to analyze settlement strategies and participate in a mediation between senior business executives. The matter was successfully resolved.

Links

AAA International Arbitration Rules (effective 11/01/01)
http://www.adr.org/

Uniform Arbitration Act  - Drafted by the National Conference of Commissioners on Uniform State Laws, 10/31/00.
http://www.law.upenn.edu/bll/ulc/uarba/arbitrat1213.htm

CPR Institute for Dispute Resolutions - CPR Rules for Non-Administered Arbitration
http://www.cpradr.org/arb-rules

AAA Commercial Dispute Resolution Procedures (effective 01/03/03) -- this site includes the Commercial Arbitration Rules
http://www.adr.org/

AAA website list of available rules
http://www.adr.org/

AAA Drafting Dispute Resolution Clauses - A Practical Guide
http://www.adr.org/

ICSID Rules of Procedure for Arbitration
http://www.worldbank.org/icsid/basicdoc/101.htm

UNCITRAL Arbitration Rules (adopted 12/15/76)
http://www.pca-cpa.org/english/bd/uncitralrules

Commercial Arbitration and Mediation Center for the Americas (CAMCA) Mediation and Arbitration Rules
http://www.sice.oas.org/dispute/comarb/camca/camtoc_e.asp

International Chamber of Commerce (ICC) Rules of Arbitration (effective 01/01/98)
http://www.iccwbo.org/court/english/arbitration/rules.asp