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The Commerce Court is providing a new alternative dispute resolution procedure to litigants. The procedure combines the use of a three-judge panel, ruling on the questions of law that will control the case, with arbitration, where the final factual determinations will be made in light of the three-judge panel opinion. While new with the Commerce Court, the protocols for this ADR procedure are based upon its past successful use by Judge Howland W. Abramson. These “Abramson Protocols” address the situation where parties may have a general desire to pursue the matter to resolution in arbitration, with its promise of finality, but are unwilling to arbitrate because there is no clear statement of the law to guide the arbitrators in how to interpret determinations of fact. This concern is overcome by obtaining that guidance and predictability from the strength of a three-judge panel opinion. The basics of the Abramson Protocols are as follows: After agreeing to the procedure, the parties jointly submit a list of all of the legal issues needed to decide the case, brief those issues, and argue them to a panel consisting of three Commerce Court judges. The judges issue an opinion. A settlement conference is then held before the originally assigned judge, and if the matter is not settled, the case then goes to arbitration for factual hearings and a final decision in light of the panel’s opinion. The procedure is marked by flexibility and cooperation that should prove well received by sophisticated parties. It is consensual, requires joint identification of issues, permits discovery to the extent agreed upon by the parties, and allows the parties to chose the nature of the arbitration procedure and who will arbitrate. Yet, it also has limits to give the process a sense of firmness and focus, including the greater certainty of a three judge opinion, an enforceable court order marking out the parties’ agreement to the process, and the requirement of a firm commitment to arbitrate before the judges will permit use of the protocols. In return for this judicial effort and in pursuit of finality as a party objective, the parties must stipulate that the three-judge panel’s opinion is not appealable. Similarly, in the interest of finality, the arbitrators’ award is subject to the limited review under the statutory standards for common law arbitration, 42 Pa.C.S. Section 7341. Further, the assigned judge’s decision to permit or not permit use of the Protocols is not appealable. The protocols and forms issued by the court provide considerable detail to give clarity to the process. This should avoid potential areas of confusion by anticipating a variety of circumstances that might arise, giving the parties advance solutions. However, it is clear from the documents that the court anticipates that this ADR procedure will follow a basic pattern in the vast majority of cases, and will be simple and straightforward in application. Thus, the parties are expected to pursue the objectives of clarity and finality, and litigants and counsel should not seek strategic advantage through use of these procedures in ways that do not cohere with those objectives. The shared effort by all three Commerce Court judges to facilitate this dispute resolution is similar in concept to alternative dispute resolution practices in other business or complex litigation courts. In the Delaware Court of Chancery and the Complex Litigation Docket in Connecticut’s state trial courts, judges can act as mediators in each others cases. This facilitates the resolution of cases that may otherwise not be resolved before trial. It provides the litigants with a trustworthy and credible mediator that makes them willing to even enter the mediation process. And if successfully mediated, it reduces each individual judge’s trial docket while fulfilling the parties’ objective of a prompt and final resolution. While the effort superficially may appear to be an extra use of judicial resources, it is in fact an intense, but limited, use of resources that ultimately saves time for all involved, both litigants and the court, at the end of the day. The same pattern and logic applies to the Commerce Court’s new ADR procedure. The three-judge panel provides a level of quality, certainty and transparency to the controlling legal determinations that are not going to be found in the usual arbitration process. The panel’s opinion permits the parties to have a rational basis, in terms of risk assessment, to enter into the arbitration process because there is a base of confidence that they would not otherwise have. As to resource allocation for both the court and litigants, each commerce judge will have to take time to read briefs and prepare for argument in these Abramson Protocol cases, and to write an opinion in one out of every three cases. However, that judge will not be trying cases assigned to this ADR procedure; and will not be writing opinions on preliminary objections, summary judgment or under Pa.R.A.P. 1925 in cases, otherwise assigned to that judge, that are addressed under the Abramson Protocols. The parties will expend the effort to prepare the legal issues and to arbitrate, but they will achieve greater finality and gain much more control over the cost and management of their case than in the ordinary litigation process. Through his experience, Abramson sees this process working in cases where the parties need to focus the case to control litigation expenses that make the case impractical for both parties (through the use of arbitration, rather than trial), but where the parties still want the benefit of a constitutional judge deciding their legal issues, as well as the benefits of a multiple judge review of those issues (through the use of a three-judge panel, rather than a trial judge’s opinion and then an appeal). In short, “it’s the most bang for the buck,” to quote the judge. Finally, the Abramson Protocols serve other objectives of the Commerce Case Management Program. As stated by one of America’s great lawyers, Frank Balotti of Delaware, two critical goals of any business court are predictability and consistency, goals that are achieved in large part through opinion writing. These three-judge panel opinions, while not binding as a matter of law on future cases, will plainly carry considerable weight; giving clear guidance not simply to the parties before the court in that case, but to all litigants who may confront those same issues in the future. As Abramson has observed, these opinions may also prove of use to the particular litigants seeking them if the matter involves recurrent issues in their business relations and practices. Further, if this procedure proves successful, it would be an innovative step unique to Philadelphia and the Commerce Case Management Program. One of the ideas in creating specialized business courts is that judges with an expertise in handling such cases will be able to make more informed decisions and provide greater stability and guidance in the law. Involving three judges with such expertise could multiply that effect. This novel procedure, unique among State business courts, thus increases the reliability of decision-making beyond that even normally afforded by judicial specialization. If successful, it will provide businesses with another reason that doing business in this region makes sense, i.e., the court will be providing a dispute resolution mechanism and body of law that increases efficiency and predictability so that disputes can be resolved within the parameters of more rationally assessable risks. LEE APPLEBAUM is a litigation partner at Fineman Krekstein & Harris, a national authority on business courts, and chairman of the business committee of the Philadelphia Bar Association’s Business Law section.

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