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Office Location: New York, NY
Email: llove@jamsadr.com
Website: https://www.jamsadr.com/love/
Law School: Georgetown University Law Center (J.D. 1984)
Types of ADR services offered: Arbitration, mediation, neutral evaluation and special master services
Affiliated ADR organizations: JAMS, Chartered Institute of Arbitrators, and CPR
Geographic area served: Domestic and International
Q: Describe the path you took to becoming an ADR neutral.
A: I started my legal career practicing law as a complex commercial transactions attorney in the corporate department of a major New York law firm for eleven years. After leaving the firm, I served as chief legal counsel to several municipalities and as co-founding partner of a boutique finance, infrastructure and real estate law firm.
In my legal practice, I have served as counsel in many complex transactions involving infrastructure, transportation, construction, real estate development, public private partnerships, acquisitions, dispositions and mergers, energy, and public and corporate finance. I have represented parties on all sides of the transactions from owner, public entity, lender, issuer, contractor, borrower, equity investor, trustee, fiscal agent and closing title agent. As a result, I have extensive experience drafting, negotiating and interpreting complex agreements for sophisticated transactions from many different perspectives.
In 2017, I decided to use the knowledge that I have acquired in my legal practice to provide a practical, experienced and transactional perspective to resolving commercial disputes. This knowledge informs my decision-making as an arbitrator and my conciliatory efforts as a mediator. I believe that transactional attorneys are uniquely positioned to provide a legal and business perspective to many of the principal claims involved in complex commercial disputes.
Currently, I am a neutral with JAMS and am a member of its Global Engineering and Construction Disputes Resolution Panel.
Q: What should attorneys and their clients take into consideration when selecting an arbitrator?
A: When vetting or selecting an arbitrator, it is important to consider the subject matter expertise of the arbitrator, including experience gained through the practice of law generally and in specific practice areas. While I acknowledge that most of the ADR professionals that I know are former litigators, I am confident that transactional attorneys have the advantage of having been involved in the intricate details of drafting and negotiating the business terms of many transaction documents that are similar to many of the provisions that are subject of the ADR proceeding. Such experience is extremely important and should not be underrated in our legal system which thrives on the concept that the documents “speak for themselves.”
Equally important is the need to select well-qualified, diverse neutrals who bring a diversity of thought, perspectives and experience to decision making which improves the arbitral process. While many arbitral institutions have increased the diversity of their panels, the discretion embedded in the selection should be more inclusive.
One way to embed diversity in the selection process is to consider adding arbitrator diversity as a component of the arbitration agreement. Several institutions have adopted diversity clauses that can provide guidance for drafting a diversity component to the arbitration agreement.
Q: If you were going to draft your own dispute resolution clause in a construction law contract, what points would you include (or exclude)?
A: As a contract drafter, I have personally witnessed that many dispute resolution clauses in transaction documents do not fully receive the attention to drafting required prior to the execution of the transaction documents. Unlike many labor, environmental, tax, securities and other specialized provisions in transaction documents, many arbitration clauses are included in the miscellaneous section of contracts and may be combined with the governing law and other provisions and are not timely reviewed by the firm’s dispute resolution professionals.
In drafting dispute resolution clauses in construction contracts, there are several provisions that I recommend that parties consider for inclusion in their dispute resolution provision.
First, a couture clause designed to address the parties specific requirements. When drafting dispute resolution clauses in construction contracts, the parties should recognize that dispute resolution is a party-controlled process. The more specific the dispute resolution clause is, the less reliance will be on institutional rules and the more on party control.
The dispute resolution clause provides an opportunity for the parties to assess the possible claims that could arise during the course of the project and design well drafted ADR provisions to meet the specific needs and expectations of the parties for expedient and efficient dispute resolution. The ADR clause should incorporate an expedited, tiered process (dispute resolution boards, negotiation, mediation, and/or arbitration, as desired by the parties) within specific time frames acceptable to the parties to be handled by experienced ADR professionals.
However, in drafting a dispute resolution clause, it is extremely important that the specificity of the clause does not lead to inconsistency within the clause. If the clause is found to be internally inconsistent, the result could be the disregard of the entire arbitration agreement.
Second, an integration clause to consistently and centrally resolve disputes by ADR. The transaction documents should fit together like an intricate, completed puzzle and should include integration provisions requiring all disputes in all construction transaction documents to be subject to the dispute resolution process. This ensures that litigation is not proceeding with respect to issues arising out of one contract (without an arbitration clause) while arbitration is proceeding with nearly similar parties arising out of another contract (with a dispute resolution clause). The parties should also consider whether dispute resolution clauses should be the same in all contracts or whether some disputes, in light of the amount in dispute, or the parties involved, e.g. sub-tier contractors, may require less complex dispute resolution provisions.
Third, an arbitration appeals clause to provide for appellate review of significant issues. Although not commonly used currently, an arbitration appeal process can be incorporated into the dispute resolution clauses of the construction documents that will permit the appeal of the decision of the arbitration panel. If an appellate process is desired by the parties, it should be specifically addressed in the contract’s dispute arbitration clause. If the appellate process is not included in the contract dispute resolution clause, the parties can agree later to an institution’s optional arbitration appeal process. However, once a dispute occurs, it may be difficult for the parties to agree upon an appellate process.
For large projects, the appellate process could be customized to be used only for claims exceeding a certain threshold or utilized to preserve rights of parties for certain claims for the appellate process until the end of the project in light of all of the project claims at that time.
Q: What do you do when not serving as an ADR neutral?
A: Over the years, my ADR practice has consistently increased. However, when not serving as an ADR neutral, my boutique law firm—Love and Long, L.L.P.—represents federal, state and regional public agencies, museums, and Fortune 500 companies in the areas of infrastructure, transportation, construction and energy projects, real estate, public private partnerships, public finance, corporate governance, contracting and commercial leasing.
I have served as lead counsel to the U.S. Department of Treasury, the U.S. Department of Transportation and the U.S. Department of Commerce. I have also served as bond, disclosure, real estate and P3 counsel to New York, Pennsylvania and regional agencies.
In addition, I am an appointee to the Chartered Institute of Arbitrators, Professional Conduct Committee (2021 – 2024), an associate in the College of Commercial Arbitrator Associates Program and an academy participant in ICC 2023 – 2024 DRS Learning Academy.
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