Meet D1’s Neutrals Series: ROBBIE MACPHERSON

Company: Cokinos | Young
Location: Manasquan, New Jersey
Email: rmacpherson@Cokinoslaw.com 
Webpage: https://www.cokinoslaw.com/attorney/robert-j-macpherson/
Law School: Seton Hall Law J.D. 1980
Types of ADR services offered: Arbitration, Mediation, DRB and custom designed processes
Affiliated ADR Organizations: AAA
Areas served: Primarily New York and New Jersey but will travel

---

Q: Describe the path you took to becoming an ADR neutral.

A: My first major matter was acting as second chair at an arbitration in 1981. I began to arbitrate cases in 1985 and mediate cases in 1990.

Q: What percentage of your current legal practice is spent on ADR work?

A: I spend 30-40% of my time doing neutral work and the balance as a construction lawyer representing clients in transactions and disputes.

Q: Describe your background and experience mediating and arbitrating construction cases.

A: I have been mediating construction cases since 1990. Matters range from multi-family defects cases to industrial, power plant, and heavy civil public and private projects. I have 35+ years’ experience as a construction arbitrator in a wide range of cases as a single panel member, member of a panel, and panel Chair.

Q: Mediators are oftentimes described as “facilitative,” “evaluative,” or “transformative.” Do you have a style?

A: Evaluative and facilitative as required.

Q: Do you have any practices that you find make you particularly effective as a mediator?

A: I believe I am a good listener, understand the mediation process and honestly believe any dispute can be settled.

Q: What are your thoughts on requiring mediation as a contractual prerequisite to litigation or arbitration?

A: To the extent such a provision gets a reluctant party to at least talk to the mediator they help. However, if the mediator gets the impression a party just wants to “check the box” saying they complied, the mediator should let the other party know as soon as possible.

Q: What can attorneys do to best position their clients for a successful mediation outcome?

A: Helping the client understand mediation is all about compromise, not winning.

Q: Are virtual mediations as effective as in-person mediations?

A: While in person mediations are the best practice, virtual does work. Many cases were successfully mediated in virtual proceedings during the COVID pandemic. When in-person sessions are not possible use of a virtual platform should be considered. I also recommend the consideration of a mix of in-person and virtual sessions.

Q: What techniques and strategies do you use to help parties overcome impasse?

A: I’ve used reality testing, playing devil’s advocate, bracketing, providing an advisory opinions on discrete issues, and baseball arbitration. There is also just old-fashioned listening and answering questions about why a settlement is the best alternative.

Q: What ingredients are required for a successful mediation?

A: Mediation should be a conversation between individuals committed to resolving the dispute, who have knowledge of the issue in dispute, the authority to resolve those issues, and access to the necessary expertise regarding technical issues. This is known as the late John P. Madden’s CAKE Recipe for Mediation.

Q: What advice do you have for parties when considering whether to choose a single arbitrator or a panel?

A: A single, experienced arbitrator should suffice for all but the most complex cases. An alternative to a three-member panel is a two-member panel, with one member designated as the tie breaker in the event of the two cannot reach a consensus, which most arbitrators will tell you is a very rare occurrence. The identity of the tie breaker is not known to the two members until they advise the parties, they have reached an impasse. This is known as “The Bastianelli Solution.”

Q: Do you think limits should be placed on discovery in the arbitration context?

A: Yes. I think limits should be placed on discovery in both arbitration and litigation. Discovery is an expensive process that does not necessarily deliver value commensurate to the cost. The only way to ensure arbitration will be less costly and more efficient to litigation is if we treat it as arbitration, not litigation, and make sure the attorneys involved know the difference.

Q: What role should traditional rules of evidence play in the arbitration hearing?

A: Other than privilege, the traditional rules of evidence expressly do not apply under most arbitration rules. Of course, there may be the rare exception, but understand they are rare, and you must make a very compelling case to apply the rules of evidence.

Q: In what way do you use technology in the arbitration process?

A: I encourage the use of technology to make the presentation of evidence effective and efficient. For example, using a virtual platform makes sense to present the testimony of a witness who will only be on the stand for a few hours, but who most travel a full day to appear in person.

Q: Do you have any words of wisdom for parties who are contemplating exercising a contractual right to appeal an arbitration award?

A: Yes… be careful what you ask for. Someone is going to lose. Never make the decision to appeal without also considering the possibility of a cross appeal.

Q: What are some of your interests or hobbies outside of your ADR Neutral practice?

A: Rock-n-roll; current events; biographies and history.

Editor Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law for over a decade. Marissa is a partner at Laurie & Brennan, LLP and represents owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. Marissa can be contacted at mdowns@lauriebrennan.com.