Slide services International Arbitration
Mediation
Expert Services & Consulting

International Arbitration

Arbitration is not a choice. It is a series of choices. First, of course, parties decide that traditional litigation is sub-optimal and avoid it by subjecting their relationship to an arbitration clause. Generally, nothing comes of this choice, though. The relationship proceeds as intended.

Where a dispute arises, however, more decisions follow. The parties disagree and, thus, both are aggrieved. Yet one must commence the arbitral process. Who does, and must they name a party-appointed arbitrator at that time? If so, with the knowledge of the first arbitrator, with what appointee does the party receiving the demand for arbitration respond and why? Does the arbitral clause require a particular background, qualifications or experience? Do the nationalities of the Tribunal matter? How will the appointment of the second arbitrator affect the selection of the third/Chair, particularly if agreement cannot be reached? For all of these choices, neutrality is key. Biased arbitrators are singularly ineffective, and the more overtly partisan one becomes, the more certain the party that appointed him or her should be that they will not be happy with the result.

After leaving private practice to attend the University of Michigan’s Business School on a merit scholarship and graduating at the top of his class, John spent two decades personally dealing with major, complex, commercial insurance and reinsurance claims of virtually every species involving, in the aggregate, many billions of dollars. One cannot do that credibly with a “thumb on the scale.” Covered claims must be paid promptly, non-covered claims must not, and grey areas require conversations and negotiations.

John regularly serves as an arbitrator in international commercial disputes, including as sole or Chair/third arbitrator, and has authored numerous Final Awards. He has also had direct responsibility for the hands-on management of many international and multi-jurisdictional arbitrations in Bermuda, England and the United States, at least twenty of which proceeded to an Award on the merits. These disputes involved in excess of US$100 million on average.

John is a Fellow of the Chartered Institute of Arbitrators (FCIArb), a Member of the Users’ Council of the London Court of International Arbitration (LCIA), an ARIAS (UK) Panel Member, and an ARIAS-US Certified Neutral Arbitrator.

Mediation

Many mediators have distinctive styles, and John has dealt with them all, but it is the mediations themselves that have their distinct characters. No mediator should impose a “style” on the dispute or the parties. In some cases, one (or many) joint sessions are necessary; in others, they are useless time entries for all professionals involved. Is it truly a binary, fixed-pie dispute? Is it possible that exploration might uncover previously unknown common interests buried under the surface? Is it inevitably a “salami-slicing” exercise, or might the parties pivot to a more principles/interests-based approach? Should the mediator express any views about the merits of the respective positions, or simply explore the parties’ convictions?

John’s philosophy is that the parties are the ones mediating; the mediator works for them, and should facilitate that mediation however best suits the parties and their circumstances. Though the mediator may advise on what process might be most effective, ultimately he or she simply plays a role in the parties’ mediation. No single approach is appropriate without proper regard for the dispute and the personalities involved. Mediators are taught to keep the parties looking forward, but sometimes what is past is prologue and history matters. Some mediations can be concluded with a series of telephone calls in a day, while others require months of joint sessions and caucuses, and the amount in dispute rarely dictates the process, or at least it should not. Finally, some mediators advertise their record for single-day resolutions, but fail to mention that these entail unwelcome mediator proposals and/or impositions of the mediator’s will on the merits. Although happy to do so, John will never convey a view of the merits, or his own settlement proposal, unless and until unanimously requested by the parties.

John structures his fees as a mediator in one of three ways: traditional commercial hourly, conditional (i.e., only if settlement is reached) and, in appropriate cases, pro bono. One example of an acute need for mediation is the area of domestic relations, especially where the dispute (e.g., a divorce) involves children and custody issues. From personal experience with international proceedings in this area, he believes that these disputes involve both complex arrays of financial and emotional issues, and profound opportunities to find common ground hidden under emotional friction. The toll these lost opportunities may cause to children can be devastating. Without a neutral mediator to explore solutions, two parents who love their children and want the best for them can easily be the cause of permanent damage because they are blinded by the intensity of their temporary conflict. Mediations in this area are too rare and perfunctory. John is happy to consider ways to help parties (and their children) avoid the trauma that family conflict can inflict, and may do so free of charge.

John is an Accredited Mediator with the Centre for Effective Dispute Resolution (CEDR), and an ARIAS-US Certified Mediator.

Expert Services & Consulting

Expert Services

With adequate availability, John can bring an unbiased, expert perspective to many complex insurance and reinsurance issues. These include, for example, not only best practices, good-faith claim handling, and custom and practice in a variety of markets, but also the interplay between various coverage forms and the diverse range of factual scenarios to which they may apply. If needed and appropriate, he may also opine on the traditional intent, purpose and expected function of a wide variety of coverages, as well as endorsements commonly applied, among other areas of commercial-insurance expertise. His assistance can take the form of confidential consultation and/or expert testimony where necessary.

John has testified multiple times as the critical witness in final hearings to determine the outcomes of eight- and nine-figure disputes. In the process, he has been cross-examined by both preeminent American litigators and English Queen’s Counsel. John is familiar with the traditions, expectations and duties of experts on both sides of the Atlantic.

Consulting

Dispute Resolution

John is also available to consult on the most expeditious and effective ways to address challenging disputes, whether live or inchoate. This advice may range from optimal positioning and messaging, through negotiating strategies and tactics, to resolution.

Neutral Case Evaluations

Sometimes the true value of a claim, or an entire portfolio of losses, can better be discerned by an experienced third party’s neutral analysis. Over his career, John has dealt with exposures of tens of billions of dollars in the aggregate, realistically valuing countless claims, including everything from individual catastrophic injuries to global mass torts, and the myriad of coverage disputes to which they give rise. He can bring that background to bear when an unbiased perspective is needed.

Representative Experience

John’s experience spans virtually every form of commercial insurance and reinsurance, and losses involving every industry worldwide. His background includes a deep understanding of the “Bermuda Form” and other coverages commonly written in the Bermuda market. The scope of John’s background includes:

  • casualty insurance under every trigger and form of coverage, particularly the “Bermuda Form” (i.e., occurrence first reported)
  • opioid claims involving every stage of the stream of commerce, including manufacturers, distributors and retailers under a variety of casualty coverages, and the multitude of issues to which they give rise
  • COVID-19 claims under property and other coverage forms alleging business interruption
  • allocation of insurance under competing triggers and coverage types
  • mass torts and class actions of every nature (e.g., pharmaceuticals, medical devices, herbicides, automobiles, building products, pollution)
  • D&O coverage, including both Side-A and ABC
  • securities class actions
  • derivative suits
  • E&O coverage
  • catastrophic personal injuries
  • physical explosions (e.g., the DEEPWATER HORIZON disaster)
  • dam collapses
  • long-term pollution and chemical exposures
  • professional malpractice by lawyers, doctors and insurance brokers
  • aeronautical manufacturers
  • defective satellites
  • property insurance
  • political-risk insurance
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