Mediation Experience Has served as mediator for AAA, ICDR, and private parties in over 250 cases in several states and has mediated multiparty mediations with up to five parties. Examples include a 9-figure claim by former partner against hospital system arising out of breach of fiduciary duty, unfair trade practice and antitrust claims; a 9-figure multiparty dispute involving antitrust and breach of fiduciary claims against hospital by physician ancillary group seeking treble damages; an 8-figure dispute between a national health insurance company and a large multi-specialty physician group; an 8-figure dispute over a software license and services agreement involving German and Canadian parties; an 8-figure dispute involving management and investment issues between four members of a privately held family real estate development corporation; an 8-figure dispute involving interpretation and modification of complex terms of several real estate partnerships; an 8-figure dispute between trustee in bankruptcy and multiple defendants regarding assertion of fraudulent conveyance of movable and immoveable assets, and seeking return of assets or cash amounts; 8-figure dispute involving a class action against a national bank with 17 state operations arising out of charges to customers for various bank services and allegations of breach of contract, unfair trade practice, detrimental reliance, and similar claims; a 7-figure dispute regarding termination for cause of evergreen employment contract of President of international energy company; a 7-figure mediation involving a dispute between a chemical manufacturing and supply companies; a 7-figure dispute between rehabilitation hospital and provider of wound care and hyperbaric oxygen chamber services involving long term contract; a 7-figure dispute between a corporation and employee benefits planning advisor regarding ESOP; a 7-figure dispute between partners over withdrawal from several operational and equipment partnerships and values of partnerships interests; a 7-figure dispute between a national insurance company, an excess insurer, and a hospital involving a disputed claim for health care services; a 7-figure legal fee dispute between an attorney and a law firm; a 7-figure dispute between a national health insurance company and a supplier of diagnostic services regarding medical necessity and compliance with regulatory requirements for billing; a 7-figure dispute between a hospital chain and a national health insurer; 7-figure dispute involving multiple broker claimants against multiple respondents arising out of employment and agreement for equity transfer in compensation and spin off of specialized broker/dealer from parent company; a 6-figure dispute between an automobile retail dealership and a national software and hardware company that provides accounting and data recordkeeping for automobile dealerships; a six-figure construction contract dispute between a contractor and subcontractor; a 6-figure employment dispute between a president of a national educational conference and the conference organizers; 6-figure dispute between an HMO and a hospital; a 7-figure dispute involving division of community property including undeveloped real estate located in a foreign country and spousal support; a dispute between 50/50 shareholders as to liquidation, dissolution, and asset transfer of salvage service company with annual income of eight figures; a dispute between a senior partner of a law firm and the firm as to fee division in contingency fee class action; and a mediation between two members of wholesale distribution company for buy-out of a minority interest, involving valuation, marketability, discounts, and negotiations with bank as to financing resulting in seven figure settlement for successful purchase of membership interest.
Issues Handled as a Mediator Contract interpretation disputes; family business disputes; employment disputes; health care disputes including issues of over payments, claim denials, coverage, breach of contract, antitrust, exclusion from staff, and slander; insurance disputes including issues of contract coverages and limitations of coverage, causes of physical damage to property (including engineering and scientific analysis), and valuation of property.
Mediation of Claims by Property Owners Against Insurers for Damages to Buildings Has mediated more than 100 claims by owners of buildings against insurers for damages to those properties and the related construction costs, repairs, bid process, comparison of costs, analysis of costs, various methods of repair, proof of damage and coverage, and related insurance issues as to damage, repair, and construction costs.
Has mediated hurricane-related insurance disputes between property owners and insurance companies. In this type of dispute, parties frequently exhibit visible symptoms of stress, and the mediation involves an emotional component, atypical to the business mediation, that must be addressed with focus and patience before the process can proceed and become more analytical.
Mediation Experience as an Advocate Has served as lead counsel in the following mediations: represented a client in a complex mediation between two major stockholders of a large entity valued at more than $100 million in a dispute regarding stockholder voting rights and a shareholder agreement calling for liquidation of the company; represented a group practice in a physician employment contract dispute, practice valuation, and buy-out agreement; and represented a retail employer in an employee contract dispute with the key sales person which also involved allegations of sexual harassment.
Mediation Philosophy Parties arrive at mediation with a history of conflict, and often a lack of trust. Some of that perception can be due to communication styles, and some can be due to differences in substance. As the only neutral party, I must obtain trust of the parties by demonstrating objectivity and bringing effective and creative problem-solving to a dispute.
My objective in mediation is to ensure a fair process with the primary goal of settlement. This objective requires an open discussion of the factual and legal issues beginning with face to face meetings between the parties in which they are permitted to explain their points of view as well as their interpretation of the issues in an environment of respect and inclusiveness.
I first encourage the parties to focus on the issues on which there is agreement, thus narrowing down the issues to be mediated. Throughout the mediation the emphasis is on listening and being heard, and on getting past emotion. This process often permits the parties to understand aspects of the issues, goals, and experiences of themselves and opponents not previously perceived. I also provide the opportunity, which I express in a private session, for a party to obtain a neutral and independent weighing of the risks and benefits of a position; this information often allows the parties to reassess their engagement in conflict.
My goal as a mediator is for the parties to come to an agreement on which they all agree and one which they fully understand, so that the agreement endures without either party challenging its provisions or disagreeing as to what was agreed upon. I assist in the process by asking the parties to talk to each other about what they think a proposed agreement means to them in terms of their goals.
In special circumstances where disputes involve high stress and frustration, I find it helpful to take note and pay particular attention to the emotional component of the mediation which reinforces our need as mediators to be focused, calm, patient, and unemotional ourselves. This approach does not change the ultimate legal or analytical process of the mediation itself or the method of proceeding with detailed analysis of the issues and outcome; rather it sensitizes participants to the very specific environment in which all of the legal and factual issues are being presented.
I find ineffective a mediator style that dominates the process by attempting to impose the mediator's personal opinion on the parties. In contrast, the resolution must be arrived at voluntarily and seen to be in both parties best interest in order for it to be enduring and bring closure to all levels of the conflict, whether business, financial, or emotional.
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Professional Licenses Admitted to the Bar: Louisiana, 1970; District of Columbia, 1972; U.S. District Court, Eastern District of Louisiana; U.S. Court of Appeals, Fifth Circuit; U.S. Tax Court; U.S. Supreme Court.
Professional Associations Elected to the American Law Institute, 1983; Louisiana Bar Association (Business, Corporate and Securities Law Section, Past Chair; Section on Health Care Law, Past Chair; Council on Administrative Law; Examiner in Corporations, Securities, and Negotiable Instruments, Louisiana Supreme Court appointment (responsible for writing questions and grading State of Louisiana Bar Examination in Corporations, Securities, and Negotiable Instruments), 1982-1984); American Bar Association (Business and Transactions Healthcare, Health Law Section, Vice Chair; Healthcare Fraud and Compliance, Health Law Section, Past Chair); New Orleans Bar Association (Committee on Revision of Articles of Incorporation, Past Chair, Executive Committee); American Arbitration Association New Orleans Regional Advisory Committee for Commercial Disputes (Past Member); Mediator certified by the International Mediation Institute, The Hague, Netherlands (Mediation is not an approved area of specialization by the Louisiana Board of Legal Specialization).
Education Tulane University (BA, 1967; JD, 1970); Order of the Coif; Assistant Editor, Tulane Law Review; Awards in UCC, Gift and Estate Taxation, and Legal Research and Writing. Harvard University (LL.M., 1971).
Alternative Dispute Resolution Training Faculty, ACI’s Annual Advanced Forum on Managed Care Disputes and Litigation - Managed Care Litigation Mock Arbitration Session, 2015; Practical Negotiation and Mediation Training by Master Negotiator and Mediator Eric Green, 2015; AAA Developments in Arbitration Law: Testing the Boundaries of Court Intervention, 2015; AAA Crossing the Line: New Developments in the Law of Arbitral Jurisdiction, 2015; College of Commercial Arbitrators Annual Meeting: Arbitration Compass Points: Collaborating on New Directions, Los Angeles, 2014; AAA Principled Deliberations: Decision-making Skills for Arbitrators, 2014; Faculty, ABA Section of Dispute Resolution, Arbitration Training: What’s Next for Healthcare Dispute Resolution; Faculty, American Health Lawyers Association and Hamline University School of Law Arbitration Training: Arbitrating a Health Law Case, 2012; Faculty, Spring Judges' Conference of the Louisiana Judicial College, The Bridge Between Judicial Management of Cases and the ADR World, 2012; Healthcare Payor Provider Arbitration Rules, 2011; AAA Neutrals Conference, 2010; Faculty, AAA Dealing with Delay Tactics in Arbitration, 2010; AAA Electronic Discovery in Arbitration: What You Need to Know, 2010; AAA and International Centre for Dispute Resolution (ICDR) Neutrals Conference, 2010; AAA Current Issues in Employment Arbitration: The Arbitration Fairness Act of 2009 Legislation and Recent Court Decisions, 2009; AAA and ICDR Neutrals Conference, 2009; ALI/ABA The Art and Science of Serving as a Special Master in Federal and State Courts, Washington, D.C., 2007; AAA Neutrals Conference, 2006, 2004; Large Complex Construction Mediation: The Dynamics of the Negotiation Team, 2009; Electronic Discovery in Arbitration, 2009; Mediator Ethics: Objective Standards and Subjective Practices, 2009; Arbitrator Update: Topical Issues and Case Law Arbitration, 2009; Faculty, AAA Chairing an Arbitration Panel: Managing Procedures, Process & Dynamics, 2005; AAA Arbitration Awards: Safeguarding, Deciding & Writing Awards, 2004; AAA Arbitrator Ethics and Disclosure, 2004; Arbitrator Update 2004, 2002; Faculty, AAA Ethics and Professionalism for Advocates in ADR, 2004; Faculty, AAA Ethics in Arbitration and Negotiation, 2003; AAA Commercial Arbitrator II: Advanced Case Management Issues, 2002; American Health Lawyers Association, Advanced Mediator Training Program, 2002; Faculty, AAA, The Non-Signor Cases: A Review of Jurisprudence in Which Parties Have Been Compelled to Arbitrate Even Though Not a Party to an Arbitration Agreement, 2002; AAA Commercial Arbitrator Training, 2000.
Publications and Speaking Engagements A partial list includes:
Author, “Drafting Noncompetition Agreements For Statutory Compliance: Exceptions that Prove the Rule,” Louisiana Bar Journal, December 2011.
Author, "The Enforceability of Contractual Agreements to Arbitrate: A Survey of the Last Three Years of Jurisprudence," Louisiana Bar Journal, Oct/Nov 2008 (cited by La. Appellate Court). Lecture on same topic presented to New Orleans Bar Association, New Orleans, December 2008.
Author, "The Enforceability of Arbitration Agreements By and Against Non-Signatories: A Review of the Jurisprudence,” Journal of American Arbitration, May 2003. Lecture on same topic presented to AAA arbitrators, New Orleans, July 2002.
Lecturer, “Arbitrating Cultural and Heritage Disputes” as to the unique nature of arbitration of title, ownership, and possession of rare and highly valuable artworks, AAA Webinar, December 2013
Trainer, 2-day Arbitration Training: Arbitrating a Health Law Case, American Health Lawyers Association and Hamline University School of Law, Minneapolis, Oct 19-20, 2012.
Lecturer, “The Bridge Between Judicial Management of Cases and the ADR World,” 2012 Spring Judges' Conference of the Louisiana Judicial College, Lafayette, March 2012.
Lecturer, “The Arbitration Process,” The American College of Legal Medicine, New Orleans, February 2012.
Panelist and Speaker, “Judge Alvin B. Rubin: A Life of Ethics and Professionalism,” 18th Annual Judge Alvin B. Rubin Symposium, Federal Bar Association, New Orleans Chapter, May 2010.
Lecturer, “Dealing with Delay Tactics in Arbitration,” American Arbitration Association, New Orleans, March 2010.
Lecturer, “Recent Developments in the Law of Arbitration,” LSU Law School Recent Developments in Legislation and Jurisprudence program, New Orleans, November and December 2008.
Panelist and Speaker, "Effective Arbitration of Health Care Disputes," ABA/CLE National Teleconference, June 2008.
Lecturer, "Ethics and Professionalism for Advocates in ADR," American Arbitration Association, New Orleans, December 2004.
Lecturer, “Ethics in Arbitration and Negotiation,” American Arbitration Association, Dallas, September 2003.
Lecturer, "Ethical Duties of Lawyers and Arbitrators during Negotiations and Alternative Dispute Resolution," American Health Lawyers Association, Physician and Physician Organizations Law Institute, October 2002.
Co-author with Judge Alvin B. Rubin, LAW CLERK HANDBOOK: A HANDBOOK FOR FEDERAL DISTRICT AND APPELLATE COURT LAW CLERKS, Federal Judicial Center, 1977.
