Highlights from New York Arbitration Week: Bringing Together the Best in ADR
JAMS joined 21 other supporting organization partners, including all major arbitration providers, in participating in the inaugural New York Arbitration Week (NYAW) from November 19 to 22, 2019. The event was packed with more than a dozen panels, programs and networking receptions that brought together hundreds of top alternative dispute resolution (ADR) practitioners and thought leaders to talk about the triumphs, tribulations and trends in domestic and international arbitration. Here are my three takeaways from the week’s activities:
1. Listen to—and learn from—parties who choose and use ADR.
Events like New York Arbitration Week provide a rare opportunity to hear from a highly sought-after community: parties who use ADR processes. Since arbitration is (most often) triggered through contractual agreements, better understanding the authors and agents of such contracts is key to improving and evolving the field. What goes into the drafting of ADR clauses? How are neutrals selected? Where are the perennial pain points? And what do clients value and appreciate about arbitration?
JAMS Executive Director of Arbitration Robert Davidson moderates the “M&A and Complex Financial Disputes in Arbitration” panel.
JAMS Executive Director of Arbitration Robert B. Davidson facilitated a conversation of diverse corporate voices and experienced advocates that addressed these questions in the context of how, when and why arbitration is used to resolve conflicts related to mergers and acquisitions and complex financial disputes. Expert panelists included outside counsel powerhouses Julie Bédard, head of Skadden’s International Litigation and Arbitration Group for the Americas, and Frances E. Bivens of Davis Polk’s litigation department. Business insights were offered by Sharad J. Khemani, M&A counsel at Stryker; Allyson Rothberg, executive director and assistant general counsel at JPMorgan Chase & Co.; and Mark Hickey, vice president and head of credit risk management at Zurich North America. (A full panel description is available here.)
“M&A and Complex Financial Disputes in Arbitration” panelists: (back row, from left) Julie Bedard, Sharad Khemani, Robert Davidson and Allyson Rothberg; (front row) Mark Hickey, Frances Bivens
Speakers touched on the importance of tailoring dispute resolution strategies to align with jurisdictional risks and enforcement practicalities. Corporate counsel shared some of the challenges they face educating internal dealmakers about best practices for drafting and negotiating ADR clauses given the ever-changing diversity of commercial circumstances, partnerships and pressures. The discussion provided an enlightening perspective on how companies think about the commercial implications of arbitration and the factors they weigh when moving forward with an arbitration.
Highlights included lively conversations about these topics:
- The dangers of boilerplate and “cut-and-paste” ADR clauses—especially considering the sometimes drastic differences in default rule provisions
- Challenges to the effectiveness of multi-step dispute resolution clauses—are they too often fodder for litigious stalling?
- The importance of understanding default confidentiality provisions—and how to ensure the desired level of privacy protections
- Limitations on discovery and an acknowledgment that opinions depend on the particular fact patterns of different matters as well as the size and importance the conflict represents to the company
- Skepticism regarding the value of arbitral "appeal" mechanisms—most are far from the “second bite” frustrated parties seek
- A clarion call for arbitrators (and institutions) to be bolder in suggesting mediation as a viable option during the arbitration process in order to facilitate settlement
ADR Inclusion Network Steering Committee members Sheila Sproule and Niki Borofsky mark the occasion with a selfie taken by Mohamed Sweify of Fordham Law School after a successful breakout session discussion on how young practitioners can position themselves for a career in arbitration.
2. Understand the benefits of diversity and inclusion in ADR—and do something.
The landscape of advocacy for diversity and inclusion (D&I) in ADR has flourished over the past decade. We know that there are concrete advantages to engaging diverse and inclusive neutrals, yet we are still far from achieving our aspirations and goals. This frustrating reality was a rallying call for members of the ADR community and a theme that weaved through much of NYAW.
I had the pleasure of speaking at the week's opening panel on Wednesday, November 20, 2019, which was titled "Diversity Challenge: Reinventing the Landscape for Young International Arbitration Practitioners." In this session, the indomitable Rekha Rangachari, executive director of the New York International Arbitration Center, assembled a dream team of young D&I leaders from dispute resolution organizations who shared actionable strategies, tips and tools to move the proverbial needle.
Leading off the morning's discussion with my colleague and co-founder of the ADR Inclusion Network, Sheila Sproule, we highlighted one of the network's key purposes: to serve as a clearinghouse and amplifier for the many groups working to advance and support D&I. With so many bright minds at work, the cacophony of ideas, protocols and solutions was organized into chorus of shared and accessible resources and best practices.
The “Diversity Challenge” panel and subsequent breakout working sessions offered an excellent “to-remember” list for tackling pernicious and pervasive puzzles:
- Combat implicit bias: Invest in training to better understand how we can control or mitigate the negative impacts of our unconscious impulses.
- Open our minds to intersectionality and identity: D&I issues are not linear. The challenges intersect in a Venn diagram of factors and feelings, including many non-binary concepts.
- Recognize the socioeconomic angles: In the world of ADR, many career paths require a lot of “volunteer” training and work to build a reputation. Who is being left behind by this model?
- Communicate and collaborate: Big, systemic challenges require teamwork. On important issues, the ADR world grows stronger and gets closer to a more just and equitable community from each organization’s good work: JAMS offers the inclusion rider to implore parties to consider the importance of selecting fair and representative neutrals. The International Institute for Conflict Prevention & Resolution hosts the Diversity in ADR Task Force and offers a “Young Lawyer” Rule. The American Arbitration Association has the Higginbotham Fellows Program. The American Bar Association adopted Resolution 113.
3. Remember the advantages of seating arbitrations in New York.
It’s no surprise that NYAW achieved one of its primary objectives: to highlight the many reasons why New York is a convenient, desirable venue for arbitral proceedings.
According to NYIAC, “New York is the leading center for international arbitration in the United States and one of the leading arbitral centers in the world.” This mantra was consistently echoed throughout the event, which has inspired me to write a second post on the top reasons to use New York as your next arbitral seat. Stay tuned.
Niki Borofsky, Esq. is a practice development manager at JAMS focusing on the growth and expansion of the New York dispute resolution market. She is also a founding member of the ADR Inclusion Network. She can be reached at NBorofsky@jamsadr.com.
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