Business Lawyers and ADR: Ethical Challenges

The third and final part of the morning-long Commercial Finance and Dispute Resolution Symposium at the recent ABA Business Law Section Annual Meeting was a discussion, among audience and experts, of some hypotheticals implicating the obligations of attorneys who negotiate dispute resolution clauses and who represent clients in ADR procedures.

The experts were Stan Sklar of Chicago and Alex Wald of Boston’s Cohen and Gresser.  The audience included some of the sharpest minds in commercial negotiation and dispute resolution.  And the hypos brought out some clever analysis, even if not every one led to clarity.  The scenarios, and a capsule of the discussion of each, follow.

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Collaborative Law Approaches to M&A Disputes

John Levitske of Duff & Phelps, who serves as Vice-Chair of the ABA Business Law Section’s Dispute Resolution Committee, assembled a provocative panel in Chicago on the topic: “Whether Collaborative Law Can be Used to Effectively and Efficiently Resolve Post-Merger and Acquisition Disputes.”  He described it as an effort to articulate the intersection between a little-known technology and a felt business need.  Read more »

Project Finance and ADR: The Dispute Review Board

The second offering of the three-part Symposium on ADR and Commercial Finance at the ABA Business Law Section Annual Meeting addressed disputes arising in long-term, high-budget, tightly-scheduled, deeply interdependent projects — like building an airport — where “divorce is not an option.”  According to Deborah Mastin, the issue is how clients manage unplanned adverse events that occur during projects, mitigate their impact and resolve the issues they present.

Was the unplanned event discussed with experienced people prior to the project’s beginning?  Was there an agreement on how unanticipated events will be handled with a minimum of time?  Delay in a construction project like an airport can cost hundreds of thousands of dollars a day, so the response to problems that threaten delay in the work must be timely and the solution must be accepted by everyone.  Read more »

ADR and Commercial Finance: Life Among the Deal Lawyers

The ABA Business Law Section has turned its back on the August Annual Meeting of the Association and is now convening its own Annual Meeting in Chicago a month later.  It is a resounding success by any measure, but certainly from the perspective of the Business Law Section:  Over 1,500 attendees, 500 of whom are first-timers.

One of the many ambitious and rewarding CLE offerings at the Section Meeting was a three-part Symposium on ADR in Commercial Finance.  It was an extraordinary example of collaboration among three committees in a usually highly silo-ed organization:  Commercial Finance, Project Finance and Development, and Dispute Resolution.

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