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Litigation & Arbitration

Nov. 8, 2017

Robert H. Fairbank, Esq.

Phillips ADR, Fairbank ADR


Bob Fairbank conducts mediations of complex high-stakes disputes both independently (through his own practice, Fairbank ADR) and in affiliation with the Hon. Layn Phillips, as a member of the Phillips ADR Distinguished Panel of Neutrals. Bob's mediation experience includes disputes covering diverse legal areas, such as:
• Securities Class Actions
• Shareholder Derivative Actions
• Going Private Transactions
• Patent Infringement
• Patent Royalty Disputes and Renegotiation of Patent Royalty Agreements
• Trade Secret Misappropriation
• Antitrust Class Actions
• Consumer Class Actions
• Breach of Contract
• Accounting Malpractice
• Legal Malpractice
• Negligent Misrepresentation
• Breach of Fiduciary Duty

Fairbank ADR is the successor to Fairbank & Vincent, a business litigation firm that Bob co-founded in 1996 after beginning his career as an associate and partner of Gibson, Dunn & Crutcher (1977-96).

Bob obtained extensive and diverse experience in major civil litigation over 36 years. Bob successfully represented prominent corporate and individual (Director and Officer) defendants in a variety of civil disputes, and served as co-counsel for plaintiffs in major class actions. In addition, from 2002 to 2009, Bob served as an independent consultant for the plaintiff, Regents of the University of California, in the Enron, Worldcom, AOL Time Warner, and Dynegy federal securities cases, as part of a team co-headed by the Hon. J. Lawrence Irving.

Bob also has developed sophisticated knowledge of the leading civil and criminal corporate fraud cases, government investigations, and regulatory developments as an adjunct professor at the USC Gould School of Law (2004-present) and the Stanford Law and Business Schools (2007).

Bob received his A.B. from Stanford University, his M.L.S. from the University of California, Berkeley, and his J.D. from New York University, where he served on the Law Review. He is also a Los Angeles Super Lawyer (2005-2017).

Robert Fairbank

Q&A with Robert Fairbank, Esq.

Q: When do you begin the process of a successful mediation in a complex matter? Do you contact the parties in advance after receipt of the mediation briefs to gather intelligence, collect thoughts, answer questions, etc.?
-- David Willingham, Boies Schiller Flexner LLP

A: Yes, I devote substantial time and effort to pre-mediation preparation and communications with all participants in advance of the all-day session. In my experience, the sooner I can begin learning about the unique dynamics of a case, get to know the parties and counsel involved, and obtain relevant knowledge and information that goes beyond what is in the written briefs, the more effective and informed I will be as a mediator. I hold at least one detailed, substantive pre-mediation call with each side separately in advance of the all-day session to discuss factors relevant to settlement and any confidential issues that one side may privately want to raise, so that when we arrive at the mediation, rather than starting cold, I already have a good sense of the participants and important elements of the dispute. I have found this commitment to pre-mediation efforts to be extremely effective and well-received.

Q: When a mediator comes to a session only mildly prepared, it does not feel like the parties get their money's worth for the day. What do you do to prepare for a mediation to ensure it is effective, and what do you ask of both sides to help prepare?
-- Rick Richmond, Jenner & Block LLP

A: Having spent 36 years as a litigator, I often felt that very frustration coming to a mediation and not sensing that the mediator had a strong enough grasp of the merits of the case to be effective. To have credibility and be able to effectively persuade both sides, it is crucial that I come to the mediation as prepared as I can by mastering the merits of the case to the extent possible and thoroughly understanding all the relevant facts and arguments. To that end, beyond substantial pre-mediation calls I hold separately with each side to discuss factors relevant to settlement and other issues that go beyond what is in the briefs, I ask each side to consider and be prepared to orally address a detailed set of confidential written questions submitted shortly before the mediation regarding what I perceive to be their relative strengths, weaknesses and risks.

Q: How much time, if any, do they devote to post day-of-mediation work if the case doesn't settle?
-- Brian Kabateck, Kabateck Brown Kellner LLP

A: In my experience, many (if not most) of the particularly large and complex disputes do not settle in the initial session, although good progress and a useful foundation for settlement at a later time can be made. I remember feeling frustrated as a litigator when, frequently, the mediator essentially disappeared after the all-day session and did not reach out to the parties to follow up. By contrast, I am adamantly committed to following up with the parties and staying actively engaged through phone calls, emails and/or additional mediation sessions, for as long as it takes to resolve the matter. For example, even if active mediation efforts are "on hold" while litigation plays out, I will regularly check in with both sides every few weeks for a simple status update, so I am prepared to act quickly when the time is right. I have received extremely positive feedback regarding my follow-up approach.


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