Originally from Dispute Resolution Journal

Peter Carfagna, whose firm represents some of the biggest and brightest stars in the world of professional sports, is a self-confessed “recovering” litigator. Gone are the days when he would jump at any chance to go for the proverbial jugular to win in court. The following is a description of his transformation from a “mad dog” litigator to an alternative dispute resolution advocate. Carfagna also provides some hypothetical disputes involving professional athletes and shows how the use of mediation and arbitration could save everyone from the staggering costs, the heartaches, and many sleepless nights usually associated with a lengthy court trial. This article is based on a speech he gave recently at the ADR Day sponsored by the AAA’s Cleveland office.

After having spent many years as a “mad dog” litigator at Jones, Day, in my current role as chief legal officer/general counsel of IMG for the past seven years, I have come to greatly appreciate the many virtues of alternative dispute resolution.

As much as I loved my many years at the bar, I must confess that I now truly consider myself a “reformed” or “recovering” litigator, as I have begun to take the “12 steps” away from the bar and into the mediation/arbitration arena. As part of my confession, I want to share with you a number of (not so) “hypotheticals” that have convinced me that for virtually any complex commercial dispute, AAA mediation and arbitration constitutes the preferred way of proceeding—with all due respect to my colleagues who remain on the bench and at the bar.

First, though, let me give you a little bit of personal background. I arrived at Jones, Day fresh out of Harvard Law School, ready to litigate with anybody at any time.

I trained under the “masters,” including Tom Mulligan and Pat McCartan who is still the managing partner at Jones, Day. They taught me how to try a case. They taught me how to cross-examine a witness. They taught me how to make an opening and a closing argument. They threw me into the deep end, but left behind numerous “life lines” to help bring me back to shore, whenever I started flailing.

I remember my first case co-chairing a defense trial for a national department store chain. The jury issue turned on the so called “two-inch rule” pursuant to which a deviation in a parking lot pavement cannot be more than two inches, or else the owner of the premises may be found “per se” liable.

My litigation future was in the judge and jury’s hands. I was sure that we had thoroughly convinced the jury of the propriety of the national corporation’s reasons for deviating from the “two-inch rule.” I was sure the jury was in our hip pocket: then, they returned a major plaintiff’s verdict, which is still written about in the journals of the Ohio Bar to this day.

That was the first time that I learned this lesson: maybe it would be smarter to switch to arbitration than to fight in litigation.