B2B ADR NEUTRAL -- ARBITRATOR & MEDIATOR (RETIRED ADR LAWYER)
B2B ADR NEUTRAL -- ARBITRATOR & MEDIATOR (RETIRED ADR LAWYER)
Meet David Abeshouse, Principal of the Law Office of David J. Abeshouse
David Abeshouse says:
Most law firms, and indeed most businesses (large and small alike) try to present their customer service as high quality or at least better than that of their competitors. The reality is, however, that their level of attention to client needs (for example, responsiveness to client phone calls and e-mails; appropriate explanation of complex legal matters; and timeliness for appointments and otherwise) usually ranges from mediocre to abysmal. And as important as customer service is in most business arenas (whether retail sales, B2C services, or others), it is even more significant when your business is on the line due to B2B legal issues. In these situations, the lawyer's attention to client service becomes of paramount importance, as it constitutes one of the key bases of the attorney-client relationship. You are paying for top-level service and experience, and should not have to compromise your expectations. This is the standard to which you should hold your business dispute resolution lawyer. Your lawyer should be ready to rise to the challenge.
I have a passion for resolving business disputes. I am deeply involved in conflict management and business dispute resolution from several different perspectives and in several different contexts.
I am a business dispute resolution lawyer, an ADR law consultant, an Arbitrator, and a Mediator:
As a lawyer, I represent and advocate forcefully for my clients in settlement negotiations, arbitration or mediation proceedings, or (on rare occasion, where appropriate) court litigation. I also help businesses that have received a subpoena from a governmental agency such as the New York State Attorney General or the United States Department of Justice. Wearing various professional hats, I have the advantage of seeing the process from the perspective of adjudicator as well as lawyer, and this makes me a more effective advocate for my clients. Responsive mutual communication between attorney and client is essential, emphasized, and encouraged.
As an ADR law consultant, I assist experienced (and inexperienced) courtroom trial lawyers who are relatively unfamiliar with arbitration (and mediation) practice and procedures to effectively represent their clients without being "behind the 8-ball" by reason of their lack of experience in ADR matters. I help level the playing field, or more often, provide a distinct advantage, to lawyers and parties who hire me to be an on-call consultant in their ADR cases. thus, combining my experience as an advocate and a professional neutral in ADR matters, I also provide arbitration/mediation consulting services to the profession. Many lawyers have litigated cases but are unfamiliar with the principal ADR (arbitral and mediation) arenas: rules of procedure, approaches and methods, what to expect, how best to manage the process. Clients or their counsel can engage my services so that we can work together in a win-win-win situation.
As a professional neutral Arbitrator, I act essentially as a private judge for several different national and international Alternative Dispute Resolution (ADR) forums, hearing and adjudicating cases arising out of business disputes and conflicts, and my binding decisions, ultimately have the force of law.
And as a professional neutral Mediator, I serve as an independent outside facilitator of the parties’ efforts to resolve their business disputes in a meaningful, constructive, consensual, win-win fashion, ultimately resulting in a written settlement agreement reflecting the parties’ needs and interests. Mediation is one of the most effective and mutually rewarding means toward resolving business and other disputes and conflicts. My private mediation services encompass diverse industries and substantive business areas, including commercial (e.g., breach of contract, shareholder disagreements, business entity dissolution, and various other intra- and inter-entity disputes), employment (termination, trade secrets/unfair competition, discrimination, and other labor-related matters), real estate, franchising, professional malpractice and other business torts. I encourage you to explore this exciting and advantageous means for improving communication and/or resolving business conflicts, as mediation often results in a mutual "win" situation for all parties involved, and at a substantial savings of cost, time, effort, emotion, and disruption, in contrast to litigation in court.
Mediator qualities –
Integrity, impartiality/neutrality, and fairness;
Personally planning and managing the mediation process;
Substantial advance preparation for each mediation;
Ability to engage in facilitative, analytical, evaluative, and/or transformative mediation approaches;
Enthusiasm and a sense of humor where appropriate;
Empathy, intuition, and creativity;
Sincerity, candor and common sense;
Honoring confidentiality requirements and expectations;
Promoting constructive communication;
Asking difficult and probing questions with sensitivity;
Knowledge about the differences between parties’ positions and their interests;
Persistence, both in terms of willingness to continue a particular mediation session, as well as staying with the mediation process beyond the initial session, if necessary;
Ability to engage in "reality testing" to ensure that the parties are in the realm of reasonableness rather than in the stratosphere or ocean depths;
Modeling respectful behavior;
Understanding the emotional needs of parties;
Identifying key issues at appropriate times;
Perceptiveness about what is really happening in mediation;
Having a good sense of timing and sequencing;
Keeping the process flowing without being overly rigid;
Making good decisions about when to have joint sessions and when to caucus;
Giving people questions to consider while caucusing with the other side;
Keeping caucuses as short as reasonably possible and checking in with people on the other side during long caucuses;
Having patience and knowing when to change course;
Intervening appropriately when the process is going off track; and
Flexibly modifying the approach as needed – not a cookie-cutter approach.
Also, it is important for a Mediator to continuously train and educate. Toward this end, I read book and articles on mediation and conflict all the time, and I regularly take and teach courses relating to mediation and conflict resolution. Recently (January 2009), I completed a special transformative mediation training and further certification 35-hour course offered by the Hofstra University School of Law Mediation Clinic and the Institute for the Study of Conflict Transformation. More recently (May 2011), I completed a 2-day further certification training course in Advanced Mediation, through the New York State Courts System.
Combining my experience as an advocate and a professional neutral in ADR matters, I also provide arbitration/mediation consulting services to the profession. Many lawyers have litigated cases but are unfamiliar with the principal ADR (arbitral and mediation) arenas: rules of procedure, approaches and methods, what to expect, how best to manage the process. Clients or their counsel can engage my services so that we can work together in a win-win-win situation.
I also am deeply involved in the business and legal community: For the past two decades running all aspects of a small real estate business in Manhattan for an Australian client; serving on the boards of directors of several not-for-profit corporations; chairing a large bar association ADR Committee for two years; co-founding in 2000 an active and effective niche practitioners lawyers’ networking group that still is going strong more than a dozen years later; conducting alumnus interviews for high school seniors seeking admission to my very selective undergraduate alma mater, for which I served on the Secondary Schools Committee for 15 years; regularly publishing articles in print and online media both nationally and locally; and engaging in extensive public speaking on ADR and a variety of law-related topics, among other things. I am fortunate to be able to fulfill my passions for business dispute resolution and community service in so many ways, and continually seek out others whom I can assist. Please call or write to me if I may be able to help you or someone you know.
On being a "resource hub": I am pleased to be able to refer clients and colleagues to a broad and deep network of trusted professionals and other service and product providers, developed over many years and through diligent efforts. For further elaboration on this concept, please see my article published in the New York Law Journal in September 2005 and on Law.com in November 2005 -- a link appears on the publications and speaking engagements page of this website. I seek continually to practice what I preach.
A brief thank-you: My law practice is not built on advertising; rather, it is founded upon referrals – referrals from valued clients, trusted professional colleagues and friends, and others who have benefited from working or affiliating with me. Indeed, some new business is referred to me by former adversaries -- opposing counsel. The greatest compliment that you can bestow is to recommend that your business colleagues, friends, and family consult with me regarding their legal matters. I greatly appreciate the confidence so many have shown by their referrals and endorsements of my services.
Responsibility is key: I personally am involved in every client matter, and do not delegate cases to inexperienced junior colleagues who are unfamiliar with the case or the law. I refrain from accepting matters that are outside my niche areas of practice (not a “jack-of-all-trades”); instead, I carefully recommend other professionals who are appropriate for cases I do not handle.
My responsiveness pledge to clients: I never have kept any client waiting for a scheduled appointment at my office, and never will. I never double-book appointments, and I will make sure to see you within 5 minutes of your on-time arrival, and will devote an appropriate amount of uninterrupted time to you and your matter while you are here. Additionally, in contrast to many lawyers, I will return your phone calls, and respond to your e-mails, promptly and personally -- I do not use assistants or surrogates to schedule my appointments or do my other work. This is my responsiveness pledge to my clients. I guarantee it.
How can I "prove" to prospective clients that I am far more responsive (by e-mail, phone, and in person) than most lawyers, arbitrators, and mediators? I can tell you that many people come to me specifically for my reputation for responsiveness, but that's just me blowing my own horn. I can tell you that I try to treat others as I'd want to be treated were I paying for the services, but I guess anyone could say that, whether or not it's true. But here's one irrefutable act that does demonstrate that responsiveness is high on my list of priorities (and more so than other lawyers): Several years ago (in 2007, long after most lawyers had websites), when a client told me that I was the most responsive lawyer around, something clicked for me, so I checked whether the following two web domain names already had been taken by others: www.responsivelawyer.com and www.responsiveattorney.com -- surprisingly, they both were available and I took them (if you enter those URLs into your browser, you'll be forwarded to the home page of my website). It astounded me that none of the more than 1.1 million lawyers in the USA at the time had thought of claiming either of those web domain names before 2007. This perhaps sheds some light on why "unresponsiveness" is one of the main reasons clients cite for switching their legal counsel -- so many lawyers do not even think about how important it is to be attentive to those who pay for their services.
A call to transactional lawyers:
I have been designated as the independent neutral Mediator, identified in advance in written agreements, for resolving disputes arising out of various private business agreements (including entity-creation documents such as LLC operating agreements, corporate shareholders’ agreements, vendor/vendee agreements, and the like).
Thus, rather than forcing parties to resort to the time-consuming and often issue-ridden process of attempting to select a neutral Mediator after a dispute has arisen under a contract, transactional counsel for the parties can designate the parties’ agreed-upon neutral mediator in the business agreement itself, and thereby avoid having to deal later with these issues while the underlying dispute remains unaddressed. This effectively resolves, in advance, one of the difficult threshold issues once a dispute arises: how to select the Mediator.
By designating your agreed Mediator in the business agreement, and incorporating by reference the separate mediation agreement form (available upon serious request), you take the first step toward faster and more effective resolution of any internal issues, disputes, or conflicts that may occur in the course of business.
Here is a very basic sample general clause for use in this connection:
Dispute Resolution: In the event of any dispute, claim, or disagreement arising from or relating to this agreement, the parties shall endeavor to settle the matter; however, should informal discussions not be successful, the parties agree to try to settle the dispute by mediation, using the services of David Abeshouse or, if he is is not available to serve as Mediator, another Mediator mutually acceptable to the members. Except when injunctive relief may be necessary to prevent irreparable harm or to preserve the status quo, no litigation (or arbitration) shall be initiated until after the expiration of ninety days following the delivery of a written request for mediation by one party to the other(s). An executed copy of Mr. Abeshouse's mediation agreement is attached as an exhibit hereto. [An arbitration clause can follow as well, if desired.]
I would be happy to assist you in crafting the particulars of an appropriate dispute resolution clause for your agreements, free of charge, and without obligation to name me as neutral.
Continuing Legal Education (CLE): New York State mandates that its practicing lawyers take 24 CLE credits biannually. Many lawyers struggle to achieve this standard. Between the CLE credits I amass through teaching accredited CLE courses to lawyers and those credits for which I qualify by attending CLE seminars, I routinely exceed (often more than doubling) the State requirements, ensuring that I remain current in rapidly-changing areas of the law relevant to my practice. Similarly, in order to remain certified for the panels on which I serve as a neutral arbitrator or mediator, I must take Arbitrator Continuing Education (ACE) courses for credits as well.
For example, here is a representative sampling of CLE and ACE courses in ADR topics in which I've participated in recent years:
AAA Webinar, Top Ways to Persuade Your Arbitrator, 2012; AAA Webinar, Controlling Chaos in Mediation: Navigating the Behavioral Paradigm, 2012; AAA Managing the Arbitration Process for Efficiency & Economy Following the Preliminary Hearing, 2011; AAA Maximizing Efficiency & Economy in Arbitration: Challenges at the Preliminary Hearing, 2011; New York State Bar Association Dispute Resolution Section Fall Meeting, Crisis in the Courts -- ADR as a Solution to Judicial Gridlock, 2011; AAA Webinar, How to Become a More Innovative Neutral or Advocate: Applying Cutting Edge Innovation Management Techniques to Your ADR Practice, 2011; AAA Webinar, Drafting Mediation Settlements that Stick, 2011; AAA Webinar, What's a Respondent Like You Doing in a Place Like This? Confronting Arbitrability and Jurisdiction Issues in Arbitration, 2011; AAA Webinar, Consummate Negotiation: Techniques & Tactics, 2011; AAA Webinar, How Are Your (Negotiation) Table Manners?, 2011; AAA Webinar, Arbitrator Boundaries: What are the Limits of Arbitrator Authority?, 2011; NY State Court System, Advanced Mediation Training, 2011; AAA Muscular Arbitration: Trimming the Fat Out of Arbitration, 2011; AAA Dealing with Delay Tactics in Arbitration (ACE004), 2010, 2005; AAA/ICDR Neutrals Conference, 2009; AAA Neutrals Conference, Mediator Ethics: Objective Standards and Subjective Practices, 2009; AAA Neutrals Conference, Arbitrator Update: Topical Issues and Case Law in Arbitration, 2009; AAA Roadmap, The Standard for Efficient and Cost Effective Arbitration, 2009; AAA Neutrals Conference, Electronic Discovery in Arbitration: What You Need to Know, 2009; American Bar Association Section of Dispute Resolution Spring Annual Conference, 2009; New York State Bar Association Dispute Resolution Section Annual Meeting, 2009; Hofstra University School of Law Mediation Clinic and the Institute for the Study of Conflict Transformation, Transformative Mediation Certification, 2009; AAA Ask & Answer: Arbitration, 2008; AAA Chairing an Arbitration Panel: Managing Procedures, Process & Dynamics (ACE005), 2006; AAA, Arbitrator Perspectives, 2005; AAA/NY County Lawyers Association, Breaking the Impasse at Mediation, 2005; American Bar Association Dispute Resolution Section, ADR Conference, 2004; Touro College of Law CLE, Mediation for Litigators, 2004; AAA Commercial Arbitrator II Training: Advanced Case Management Issues, 2003; AAA Neutrals Conference, 2003; AAA Arbitrator Update, 2003; AAA Arbitration Awards: Safeguarding, Deciding & Writing Awards (ACE001), 2003; American Bar Association Advocacy Techniques in Mediation, 2003; AAA, Role of Arbitrator in Expediting the Process Workshop, 2003; AAA Arbitrator I Training-Fundamentals of the Arbitration Process, 2003; AAA/Nassau County Bar Association, Ethics in Arbitration, 2003, 2002; City Bar Center/Association of the Bar of the City of New York, Advanced Mediation Training, 2002; Nassau Academy of Law, Use of ADR in Commercial Litigation, 2001; AAA/Nassau County Bar Association, Current Issues in ADR, 2001; various other ADR training.
Regarding social media connections, for disclosure and conflicts purposes in connection with my service as a neutral arbitrator or mediator:
I use a number of online professional networks such as LinkedIn and legal listservs. Many social media connections these days are superficial rather than substantive. For example: On LinkedIn, a large social media platform/network for business people and professionals, I have more than 1,500 listed contacts or connections. I do not know each of these people well. Some are close colleagues, but I also have accepted connections with others merely because they are involved in dispute resolution or some other interest of mine. I have never had any direct communication with many of these people, other than to accept their initial connection request. I often accept requests from other professionals to be added to my LinkedIn website but I do not search those databases, even if accessible, because the vast majority of the “connections” there do not have a sufficient relationship to warrant disclosure. By way of further example, although I have received hundreds of “skills and expertise endorsements” on LinkedIn, I never have requested that anyone click to endorse me for any skill; I never have offered to do so for anyone else; some of the people who have endorsed me for certain skills may not have direct personal knowledge of those skills; and it currently is not possible to turn off this function on one’s LinkedIn profile, so we all live with it, recognizing its foibles. Significantly, however, the mere fact that I may have a “connection” with an individual on LinkedIn, or even the presence of a click-on endorsement of me for skills and expertise by that connected person, does not (standing alone) constitute a disclosable or otherwise relevant relationship, in the context of appointment as arbitrator or mediator. Similarly, I have had incidental contact – through my various bar association, speaking, publishing, networking, ADR listserv, not-for-profit, and other activities – with numerous individuals with whom I do not have a disclosable or otherwise relevant relationship, in the context of appointment to an arbitration panel. Moreover, St. John’s University School of Law has numerous adjunct law professors, most of whom I have not met and do not know, although I previously served as one of them. As the world becomes more interconnected (at least superficially), it becomes impossible to track down all conceivable connections, for disclosure purposes. However, I update my AAA panel card resume regularly; I fulfill all aspects of my Arbitrator’s Oath including those relating to conducting diligent conflicts checks; and I make all reasonable efforts to disclose any and all relationships that might reasonably affect impartiality or independence in the view of the parties. I welcome any questions in this connection; and please feel free to visit various pages of my website for further particulars regarding my activities: http://www.BizLawNY.com .
Solos and small firms:
According to Michael S. Greco, President of the American Bar Association (2005): "Approximately eighty percent of America's lawyers practice solo or in small firms in communities throughout our nation. Their work touches many people at some of the most significant points in their lives...." I hope that my work will continue to have a positive impact on the lives and companies of the businesspeople and professionals who seek out my legal services. Toward this goal, I strive daily to address positively some of the reasons that prospective clients should come to me rather than to some of the larger law firms: level of responsive personal service; degree of client control over which lawyer actually performs the work for the client; handling matters that would be inappropriate for the large firms geographically, financially, or politically; flexibility as opposed to stodginess; magnitude of their billing invoices, and paying for the "extras" that typically adorn big law firm offices and the perks often afforded their senior lawyers; a cultivated network of quality professionals to whom I can refer clients for areas in which I do not practice, rather than being beholden to refer them to law partners who might not be best suited to handle the matter.
Small business and lawyers:
As reported by the Wall Street Journal (Oct. 2005):
Nearly a third of small-business owners say they have little or no trust or confidence in lawyers or the legal profession: In a survey of small-business owners conducted by the National Federation of Independent Business, 28% of the owners say they have a great deal of confidence in lawyers, 41%, some; and 30%, little or none at all.
In the past year, 78% of owners polled by NFIB say they have sought advice or other assistance from an attorney over a three-year period. In consultations with lawyers, the topic most often cited was contracts, 20.6%, debt collection, 15.5%; real estate, 14%; liability, 10.8%; and employment, 8.8%.
About 41% of the businesses became involved in a dispute in the past three years that needed the services of a lawyer, the most likely topic being creditor collections, followed closely by contract disputes. The majority of such disputes, 53%, are settled out of court, with arbitration or mediation solving 22%.
I am on a personal mission to improve the percentages of those having trust in lawyers, and to enhance the proportion of disputes appropriately resolved out of court, without litigation wherever possible.
A word from Abe Lincoln:
On July 1, 1850, before he became President, Abraham Lincoln, a renowned trial lawyer, gave a speech before a group of lawyers -- it contained the following now oft-quoted remark:
"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough."
On a similar point of perspective:
Voltaire, the French philosopher and author, said of litigation, "I was never ruined but twice: once when I lost a lawsuit and once when I won one."
I was invited to join the faculty, and accepted a part-time position for the school year, as Adjunct Professor at St. John's University School of Law, teaching a course entitled "Alternative Dispute Resolution" commencing Fall 2012. I always am eager to help educate the next generation of lawyers who will be sufficiently savvy to advise and represent their clients in mechanisms such as arbitration and mediation that expand dispute resolution options within as well as far beyond the federal and state court systems. The Law School’s website is: http://www.stjohns.edu/academics/graduate/law .
St. John’s University School of Law is a national leader in ADR education, and is home to The Hugh L. Carey Center for Dispute Resolution:
The Carey Center is a leader in the growing field of alternative dispute resolution, offering courses, clinics, and experiential learning to students, hosting scholarly programs, and providing professional training and other forms of outreach to the community.
I am honored to have been asked to join the Law School’s adjunct faculty, and enjoyed my time there.
Selected honors and awards
For more than 15 years, David Abeshouse continuously has been awarded an AV® Preeminent™ rating (5.0 out of 5.0) from Martindale-Hubbell, which is the highest rating an attorney can obtain. This rating, determined through a national peer-review process, indicates that David Abeshouse has been recognized by other attorneys for possessing the highest levels of skill and integrity. He has been “AV” rated continuously since 1995.
An AV rating shows that a lawyer has reached the height of professional excellence. He or she has usually practiced law for many years, and is recognized for the highest levels of skill and integrity.
CV, BV, and AV are registered certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies.
Martindale-Hubbell is the facilitator of a peer review process that rates lawyers. Ratings reflect the confidential opinions of members of the Bar and the Judiciary. Martindale-Hubbell Ratings fall into two categories - legal ability and general ethical standards.
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For the third year in a row, David Abeshouse was listed in Long Island Pulse Magazine’s Top Legal Eagles, this time for 2012 (in the March 2012 issue). According to the magazine:
Long Island’s Top Legal Eagles 2012
To compile a list of top area lawyers, we invited LexisNexis® Martindale-Hubbell®, the company that has long set the standard for peer review ratings, to share their list of local lawyers who have reached the highest levels of ethical standards and professional excellence.
http://www.lipulse.com/trends/article/top-legal-eagles-2011-legal-directory-a-c -- listed under Alternative Dispute Resolution
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David Abeshouse was selected to New York Super Lawyers 2007, 2012, 2013, and 2014 -- NY Metro area, for ADR Law.
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Audio introduction to David Abeshouse -- copy and paste into browser:
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Note: Under New York State Rules of Professional Conduct, lawyers' websites such as this are considered "ATTORNEY ADVERTISING." See: 22 NYCRR Part 1200.
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Please note: The information on this website has been prepared by the Law Office of David J. Abeshouse (LODJA) and is provided to inform the reader about the services LODJA offers to clients. It is intended for general information purposes only, and does not constitute legal advice. Links to websites are for your convenience only and do not represent endorsement of those sites; LODJA also is not responsible for the accuracy or propriety of the content of those sites. Although LODJA welcomes your e-mail communications, internet messages may not be secure, and cannot be treated as privileged or confidential information. Use of this web site does not constitute or create an attorney-client relationship. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction. David Abeshouse is licensed only in New York.
Law Office of David J. Abeshouse
1429 Garfield Road
East Meadow, New York 11554