Hon. F. Keith Brown, (Ret.), Hon. Lisa R. Curcio, (Ret.) and Hon. Stuart A. Nudelman, (Ret.), senior mediators and arbitrators at ADR Systems, presented on arbitration clause drafting and the process of arbitration at the Chicago Bar Association’s inaugural Arbitration Institute on Oct. 29.
The Arbitration Institute was established to provide attorneys with high-level, substantive arbitration instruction, and it was moderated by Greta G. Weathersby, Esq. and John C. Sciaccotta, Esq. Attendees received two hours of professional responsibility credit for their participation. Judge Brown, Judge Curcio and Judge Nudelman shared not only their expertise on arbitration as a legal tool at the event, but their practical experiences as arbitrators as well.
The panel presented on two separate topics. During the first hour, they addressed the complexities of contract and clause drafting, which included necessary considerations when selecting a STEP clause and the implications of generic versus over-drafted clause language.
“Drafting an arbitration clause should be a conscious choice – a strategic choice that defines the scope of the arbitration because it can impact the overall cost of the arbitration. As a matter of practice, counsel should confer with their litigation colleagues to give them a well-rounded perspective,” said Judge Curcio.
During the program’s second hour, the panelists answered questions about the actual process of arbitration. They defined an arbitrator’s distinct responsibilities, shared their preferences during arbitrations (such as written statements as opposed to live testimony), affirmed the value of pre-arbitration conferences and outlined key variables attorneys should weigh when selecting rules of evidence, deciding on the scope of discovery and motion practice and using a single arbitrator in lieu of a tri-panel arbitration, among other things.
“An arbitration is a private court system,” reiterated Judge Nudelman several times throughout the event. “If parties agree to change rules, then so be it. They write the music. As their arbitrator, I conduct the orchestra.”
Throughout the presentation, the panelists also underscored the primary appeal and purpose of arbitration as a streamlined, efficient and cost-effective dispute resolution tool.
“Arbitration is a very flexible process that offers dispute resolution through a generally more time-sensitive and cost-effective means than litigation,” said Judge Brown. “However, for arbitration to live up to its potential, attorneys need to do two things. First, they must make smart decisions for their clients when adding an arbitration clause to a contract. Second, prior to the hearing, they must work with the other side to make the right choices when shaping what their arbitration will look like. Counsel need to keep both considerations in mind as they draft clause language or prepare themselves and their clients for a forthcoming arbitration.”
Hon. F. Keith Brown, (Ret.), former Chief Judge of Kane County, is a popular and highly respected senior mediator and arbitrator at ADR Systems. He concentrates his practice in personal injury, workers’ compensation, insurance, employment and other commercial matters. As a mediator, Judge Brown is known for his keen ability to easily connect with people and promote productive communications between all parties.
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Hon. Lisa R. Curcio, (Ret.) is a senior mediator and arbitrator with almost 30 years of legal and judicial experience. Her ability to settle cases involving all aspects of construction projects and disputes arising from construction contracts — including claims based on mechanics lien — is augmented by her knowledge of real estate and banking, which she cultivated prior to becoming a practicing attorney. Counsel know Judge Curcio as an energetic, pragmatic neutral whose measured approach helps parties construct suitable solutions to their disputes.
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Hon. Stuart A. Nudelman, (Ret.) is a senior mediator and arbitrator at ADR Systems, specializing in commercial, personal injury and professional malpractice matters, among many others. He is experienced in high-value, multiparty mediations, and has resolved more than 1,500 mediations and arbitrations throughout the United States. As a mediator, he settled the largest embezzlement case in US history in a marathon 17-hour mediation. Judge Nudelman is known for his ability to skillfully manage emotionally charged, complex cases.
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