MEDIATION AND ARBITRATION
As trial lawyers, we are ready to stand and fight for you on your day in court, but we understand mediation and arbitration can be good alternatives to resolving your disputes.
Mediation
Don Holmes, Founding Senior Partner at HOLMES PITTMAN & HARAGUCHI was involved in a number of formal and informal mediations aimed at resolving pending disputes. Several examples are set forth below:
1. Special Master Appointed by the United States Federal District Court for the Southern District of Ohio.
Mr. Holmes was appointed to serve as a Special Master in a pending termination for convenience case (No. 1:02-CV-084) to resolve conflicting equitable adjustment construction claims in excess of $200 million between Fluor Fernald and Foster Wheeler Corporation.
At the District Court’s urging, Mr. Holmes conducted fact finding hearings for eight days in Cincinnati, produced a 125 page series of legal and factual findings, and then conducted mediation sessions with the District Court Judge, the United States Department of Energy, and both parties until the matters in dispute were finally resolved.
2. Air Force Mediation and Technical Expert Report.
Mr. Holmes and another independent technical expert conducted fact finding interviews with both Air Force and company personnel to determine entitlement and quantum bases for $20 million of claims in dispute between the parties. Over 100 pages of legal and factual findings were produced setting forth these experts’ advisory opinions as to how they believed the litigation would be decided by the Board of Contract Appeals or the Court of Federal Claims. As a result of their efforts, a mediated solution to the case was successful in resolving the parties’ disputes prior to the institution of litigation.
3. United States Department of Justice Mediation to Resolve Civil False Claims Act Case.
Mr. Holmes was retained in a False Claims Act case to present factual and legal information to the Justice Department and an independent third party mediator to resolve $12.5 million in competing claims by Government Agencies for refunds, and he made presentations at multiple mediation sessions. The case was resolved shortly thereafter at a nominal figure.
Arbitration and Alternative Dispute Resolution
The firm has engaged in numerous arbitration and alternative dispute resolution (ADR).
It has strongly held views as to the advantages and disadvantages of such procedures. We believe that these alternatives should not delay the movement of cases to trial since such delays cause the parties to lose their incentive to settle.
In addition, the firm advocates the use of tightly drafted non-American Arbitration Association clauses, which put the arbitration proceedings in the hands of a pre-selected individual who has a very short period of time to decide the case so as to meet the parties’ needs for continued contract performance, and to avoid allowing matters to drag on in arbitration for a year or more. In short, we do not believe that many standard types of arbitration forms work well. They tend to be almost like a court with attendant delays and expense.
We are happy to share drafts of such short time fuse arbitration clauses for parties’ individual review, use, and tailoring to meet specific needs.
Examples of the firm’s experience in this area are set forth below:
1. United States Naval Ship Harry Martin.
Mr. Holmes was one of three arbitrators selected to decide extra work claims of $20 million under this Military Sealift construction renovation contract.
2. Federal District Court in Virginia.
Mr. Holmes was the lead attorney in presenting claims on behalf of a shipbuilder against a cruise ship operator before the retired Chief Justice of the Federal District Court in Chicago. The matter was resolved shortly after the ADR.