The inclusion of alternative dispute resolution (ADR) provisions in commercial contracts and in retainer agreements has become commonplace. As a substitute to litigation, arbitration remains a favored method for dispute resolution outside of the courthouse.
In this presentation, we will unpack emerging issues related to the enforceability of arbitration provisions in commercial contracts and corresponding ethical requirements that arise from including such clauses in retainer agreements.
The panel will discuss themes including:
• The relationship between the sophistication of parties to a commercial contract and whether an arbitration provision may be deemed unenforceable absent an express waiver in writing.
• How litigation conduct may preclude invocation of an otherwise enforceable arbitration provision.
• The implications of ABA Model Rule 1.4 (Communications) and level of disclosure provided to clients with respect to the scope and meaning of ADR provisions in retainer agreements.
Diana Manning has over two decades of experience in complex commercial litigation at both the trial and appellate levels. Diana is a Principal in Bressler’s New Jersey office, is Co-Chair of the firm’s Business and Commercial Litigation practice group, and spearheads the firm’s Appellate practice team. Diana has developed a successful track record of trial verdicts and settlements, especially in complex matters. She also has a reputation as a strategic, thoughtful, and fearless advocate for all of her clients.
A distinguished trial lawyer, Diana is Certified by the Supreme Court of New Jersey as a Civil Trial Attorney. She is also an accomplished appellate lawyer who has participated in six matters before the New Jersey Supreme Court, including arguing four times. Diana is an avid presenter and author on business litigation, legal ethics, and professional liability. She is the author of the New Jersey Chapter of The Law of Lawyer’s Liability: Fifty-State Survey of Legal Malpractice, ABA/First Chair Press, which provides an overview of the laws governing attorney malpractice in each state.
To date, Diana’s distinguished career has brought her offices and honors from many professional and legal industry organizations. Diana served on the District XA Ethics Committee for 10 years and was appointed Chair by the New Jersey Supreme Court from 2017-2019, she is a member of the New Jersey State Bar Association’s Board of Trustees, and is currently Chair of its Amicus Committee, and Vice Chair of its Appellate Practice Committee. She is also a member of the Executive Board of the New Jersey Women Lawyers Association, and is a Past President of Trial Attorneys of New Jersey, the Morris County Bar Association, and the Morris County Bar Foundation. Rated AV-Preeminent by Martindale-Hubbell, she has also been professionally recognized as a “Top 100 Lawyers in New Jersey” by Super Lawyers and a “Top 50 Women Lawyers in New Jersey”, a “Top Women Lawyer” by the New Jersey Law Journal, and named in Best Lawyers - The Best Lawyers in America list. In 2017, Diana received the Professional Lawyer of the Year Award conferred by the New Jersey Commission on Professionalism of New Jersey.
Benjamin DiLorenzo represents business and various licensed professionals in all aspects of litigation – from pre-suit negotiations, through trial and appeal. Representative matters have included complex contract and commercial disputes, insurance coverage, defense of consumer and environmental class actions, and with respect to the representation of professionals, the defense of malpractice claims against attorneys and other licensed professionals. He also represents attorneys and other professionals in disciplinary and licensing matters, and is a former member of the New Jersey Supreme Court’s District XA Ethics Committee responsible for the investigation of ethical grievances against attorneys.
As a Trustee of Trial Attorneys of New Jersey, Benjamin is an advocate for
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