Kramer Levin Naftalis & Frankel LLP has been at the forefront of the constantly growing field of Alternative Dispute Resolution (ADR).  We believe that many forms of ADR — ranging from mediations and nonbinding neutral evaluations to “mini-trials” and binding arbitration — can be important tools to further our clients’ interests.  While ADR is not always appropriate or even possible, our clients often benefit from less public, more relaxed, potentially less bitter forms of dispute resolution — particularly where there are long-standing relationships to preserve.  We are ready to advise our clients of the many alternatives and to help them to choose wisely. 

Kramer Levin’s litigators have the experience and expertise necessary to guide a client in anticipating as well as resolving disputes that might be amenable to ADR.  Every partner in the Litigation Department has participated as an advocate in numerous arbitrations, mediations, and other ADR proceedings.  While the generally confidential nature of such proceedings precludes extensive disclosure, the following is a representative sample of our experience:

• Representing a subsidiary of Procter & Gamble, we won an award from an international arbitration panel in Paris based on a breach of warranty claim arising from an acquisition agreement.
• Representing GT Interactive Software Corp. and its officers in a securities class action, we succeeded in settling the case on favorable terms through mediation and, within the mediation, a neutral evaluation procedure.
• Representing a subsidiary Johnson & Johnson in an arbitration against Chiron Corporation arising out of a joint diagnostics business, we vindicated our client’s exclusive right to valuable technology.
• Defending the founders of the Pierre Deux retail chain in an arbitration brought by the purchaser of the business, we not only defeated the claim but obtained an award of more than $ 4 million on counterclaims.
• Defending a subsidiary Johnson & Johnson in an arbitration brought by Massachusetts General Hospital seeking over $40 million for worldwide royalties allegedly due under a research and licensing agreement, we successfully limited the scope of royalties to a small fraction of the amount that was sought.
• Representing major shareholders of Cities Service Company in an arbitration before former federal Court of Appeals Judge John Gibbons arising out of Gulf Oil’s aborted tender offer for Cities, we obtained one of the largest arbitration awards ever rendered in a commercial dispute.

Our late partner Marvin Frankel, a former U.S. District Judge, was one of the nation’s most distinguished ADR neutrals. Carrying on his tradition, members of our Department often serve as arbitrators, mediators, and neutral evaluators. We are represented by Charlotte Moses Fischman and Michael Oberman on the Commercial and International Arbitration Panels of the American Arbitration Association, the Panel of Distinguished Neutrals maintained by the CPR (Center for Public Resources, of which Kramer Levin is a Sustaining Member), and arbitration and mediation panels of the U.S. District Courts for the Southern and Eastern Districts of New York.

We strongly believe that the most important time to think about ADR is before a dispute arises.  At Kramer Levin, litigators work closely with our corporate colleagues at the contract negotiation stage to ensure that any ADR provision is appropriate to the client’s needs.  We are conversant with the vast array of devices that can be employed in the crafting of an arbitration clause — such as predetermining the nature and amount of discovery, employing special procedures such as reviewing accountants or neutral appraisers to resolve specific types of disputes, providing continued jurisdiction to a single arbitrator over the life of a long-term contract, agreeing to de novo judicial review of an arbitrator’s conclusions of law, and so forth.  Perhaps more importantly, we are aware of the pitfalls that each such innovation can involve.

Reflecting our strong commitment to ADR, Kramer Levin was one of the first signatories of the CPR’s “Pledge” (officially, the “Law Firm Policy Statement on Alternatives to Litigation”):

"We recognize that for many disputes there may be methods more effective for resolution than traditional litigation. Alternative dispute resolution (ADR) procedures – used in conjunction with litigation or independently – can significantly reduce the costs and burdens of litigation and result in solutions not available in court.

“In recognition of the foregoing, we subscribe to the following statements of policy on behalf of our firm.

"First, appropriate lawyers in our firm will be knowledgeable about ADR.  Second, where appropriate, the responsible attorney will discuss with the client the availability of ADR procedures so the client can make an informed choice concerning resolution of the dispute."