Interview with William Ohlemeyer, mediator and arbitrator in Phillips ADR’s distinguished panel of neutrals, by Dr. Lynn Phillips, Client Experience Engineering expert, Berkeley Research Group.
William S. ‘Bill’ Ohlemeyer is a member of Phillips ADR’s panel of distinguished neutrals with a lengthy career and stellar track record in representing plaintiffs, defendants, and working in a Fortune 5 corporate law department across a wide range of matters spanning commercial disputes, mass torts, product liability, class actions, and federal multidistrict litigation. Bill has extensive experience managing and trying large-scale litigation in both state and federal courts across the U.S. Over a 40-year career, he has participated in numerous negotiated settlements, both mediations and arbitrations and provided advice and counsel to investors and senior management of corporations facing a variety of legal and regulatory challenges.
Bill was sent advance preparation questions prior to the interview indicating topics to be discussed. The interview was recorded but it has been edited and some topics covered were reordered for clarity.
(LP): You joined Phillips ADR’s panel of distinguished neutrals relatively recently. So, what attracted you to join Phillips ADR vs. the many other organizations that have panels of mediators and arbitrators which law firms, corporations, judges, insurers, arbitration boards, etc., rely on to source neutrals for disputes?
(WO): First, a bit of history. I worked frequently with Layn during the time when I was at Boies Schiller Flexner. He mediated dozens of disputes in which I represented a variety of clients. Most recently, I was on the plaintiff’s side representing the Cherokee and Creek Native American governments in their Opioid diversion claims where my firm was the first to file a diversion case against drug wholesalers and retail pharmacies as opposed to opioid manufacturers. Layn mediated that dispute, which eventually settled for $130 million dollars. I was also involved in a lengthy mediation of an intellectual property dispute and several high value commercial disputes that Layn mediated. In those disputes I became familiar with Layn’s approach to mediating complex cases that carry substantial risk for all parties, the very types of cases that I litigated throughout my career.
When I decided to leave the active practice of law, Layn encouraged me to join his firm. One of the key competitive advantages of Phillips ADR is that Layn put together a firm that practices mediation the way he practices mediation, which is a proven and phenomenally successful model for settling complex disputes across all types of matters. He is expanding that business model by adding new panel members like me and others who apply his methods and practice. While many of us do not have the same background and experience that Layn brings, I think prospective clients who know and have worked with Layn will increasingly say to colleagues and clients, “We are getting a Phillips ADR mediator. We know what to expect, and how they are going to approach organization and execution of the mediation.”
(LP): Let’s explore that idea further. In your view, what is distinctively different about the way Layn practices mediation in ways that are important to client stakeholders and what is the unique branded experience that they can expect to get by hiring a Phillips ADR mediator who follows that process?
(WO): There are press articles where clients and his former partners at Irell & Manella talk about what is distinctive about how Layn practices mediation, like the one announcing his appointment as the mediator in an investor class action against Johnson & Johnson over its cancer-linked talcum powder concealment case*. That same article featured clients praising Layn’s role in settling the NFL MDL concussion case. Clients in these and other articles usually comment on what Phillips ADR calls its “merits-based approach to resolution.” Layn acts as an honest broker to thoroughly understand each of the parties’ positions to win the trust of all sides that their views will be represented and then he brings them together by adjusting their realistic expectations of what their cases are really worth.
But, as I said, few if any on Layn’s panel of neutrals have his background or experience. Still, I think that clients who hire a Phillips ADR mediator know that Layn wants to have neutrals on his panel who will follow his process and can deliver the kind of client experience that he delivers in these complex cases. Layn’s calendar is not always available in the time frame clients need so when clients hire a Phillips ADR mediator other than Layn, primarily, they expect to get someone mentored by Layn in his process and who has shadowed him in multiple mediations. But I think clients expect far more than that and we can dive deeper into that if you like.
(LP): Yes, please continue.
(WO): Just as they do with Layn, clients expect to get a mediator with comprehensive hard-to-match sector and domain expertise in their type of dispute, which is typically one in which complex legal and even societal issues take center stage and the outcome means everything because it comes with significant risks for all the parties involved. Counsel on both sides need a mediator who can explain the complex issues in the dispute to all parties, has an in-depth understanding of the corporate dynamic, internal pressures and damaging PR exposure inherent in these disputes and has extensive experience in developing creative solutions to resolve them. They also expect to get someone who possesses the career gravitas that can compel parties on both sides to listen to their views, including senior stakeholders like Board members when counsel is making the case to get final approval.
(LP): Let’s break down that summary and talk about your background and career and how it fits into each of those experiences you just mentioned that clients expect to get when they hire a Phillips ADR mediator. You said clients expect a mediator in these complex cases to have extensive wide-ranging experience in handling matters like the dispute at hand. Talk about the practice areas and types of matters where you have that kind of experience and how that contributes to successful resolution.
(WO): Much like Layn, I have extensive sector and domain expertise and experience in matters spanning many practice areas and types of cases, each of them developed during distinct stages of my career. One practice area is product liability and multi-district litigation. I began my career as defense counsel representing diverse clients in litigation that involved tobacco products, prescription drugs, auto-related injuries, and claims of injury related to alleged asbestos exposure. I have tried cases to verdict in state courts, federal courts, and arbitration proceedings, most often acting as defense counsel. There is really nothing about product liability case law, case management, litigation, trial, risk assessment, and valuation that I have not done, cannot do, and even still do to this day.
In the second phase of my career, I was on the client side, working at Altria as their Vice President of Litigation and Associate General Counsel responsible for all the company’s litigation, which was focused on tobacco related product liability, anti-trust litigation, and legacy environmental litigation. At the time, Altria was a Fortune 5 corporation doing business in 140 countries. I was also responsible for commercial and criminal litigation faced by Altria’ operating companies, which included Kraft, Philip Morris USA, Philip Morris International, Miller Brewing, and a leveraged leasing subsidiary. In this role I did more than litigation, advising and explaining to non-lawyers the likely trajectory of future litigation, dispute resolution, and the implications, financial and otherwise, of that litigation.
When Altria wanted to split into separate, publicly traded companies, my practice shifted to helping senior corporate leadership achieve their business objectives without creating any claims of fraudulent conveyances or efforts to force the company into bankruptcy. I became a trusted advisor on the investment banking piece of these transactions, helping senior corporate stakeholders understand litigation threats to the company and evaluate potential bankruptcy issues. I left Altria when it successfully reorganized into three separate, publicly traded companies. I then began the third phase of my career, joining David Boies at Boies Schiller Flexner.
Once again, this phase of my career broadened my practice areas and industry sectors of expertise, serving as lead counsel to a diverse set of clients on both the plaintiff and defense side. I represented pharmaceutical companies in a wide range of commercial and intellectual property disputes, as well as managing and trying major bellwether product liability cases in several multi-district litigation (MDL) proceedings. Others included defending securities fraud cases; representing creditors objecting to reorganization plans in contested bankruptcy cases; and defending several high profile multi-billion-dollar breach of merger contract cases. The relationships that we created through the product liability litigation in turn generated an enormous amount of follow-on work in commercial litigation.
Commercial disputes became the focus of my practice over the last 10 of my 15 years at Boies Schiller, with companies engaged in disputes concerning co-promotion agreements, development agreements, intellectual property rights, and so on. I also had several trials involving multibillion dollar disputes about termination agreements associated with M&A activity. For example, when Merck merged with Schering Plow, the latter had a commercialization agreement with Johnson & Johnson for a drug developed by another company that Johnson & Johnson acquired. Johnson & Johnson sought to terminate Merck’s right to continue and profit from that agreement and the dispute was settled after a lengthy arbitration at a (publicly disclosed) net present value of nearly $7 billion.
The Boston Scientific and Guidant merger created similarly contentious litigation with Johnson and Johnson. It was during this time that I represented as plaintiff’s counsel the Cherokee and Creek Native American governments in their Opioid diversion case I mentioned earlier, collaborating closely with other well-known plaintiffs’ lawyers, several of whom were on the other side of cases I previously defended. I came to know many of them well because the work we were doing in the Opioid MDL benefited their cases. In this phase of my career, I also started giving advice to investors, hedge funds, venture capital and private equity firms who were investors or potential investors in companies with legal and regulatory risks, providing assessments predicting the near- and long-term future of those cases for investors.
(LP) Bill, that is an amazing career journey. So, over the course of your some 40-year career, you evolved from litigating big “bet the company” types of disputes to verdict in a wide range of matters spanning product liability, mass torts, class actions, and diverse types of commercial disputes across varied industry sectors—all while representing plaintiffs and defendants, including one of the world’s largest corporations as its internal head of litigation. You transitioned to finding alternatives to trial via negotiation or by providing advice to corporations and investors to avoid future disputes. Let’s connect that journey to the experience that Phillips ADR’s clients can expect to get by hiring you as mediator.
(WO) In describing my career, I tell people that I specialized in being a generalist, which requires you to bring the same skillset and apply it in different situations. I think that broadband type of capability widens the scope of my potential mediation practice. I can sit in a room and talk with clients about things that their lawyers either have not told them or have not persuaded them to do. I can sit with lawyers and explain things to them about their clients they may not appreciate or even understand. I can talk with plaintiffs’ lawyers about how defense lawyers think or with defense lawyers about how plaintiffs’ lawyers think. When I participate in a mediation for Phillips ADR, I can fairly and honestly say that I have been in everybody’s seat who is sitting around the mediation table I have been in the defense lawyer’s seat, I have been in the plaintiff lawyer’s seat, I have been in the plaintiff client’s seat, I have been in the defendant’s client’s seat. And I have done so in exceptionally complicated cases that had incredibly significant consequences for everyone involved. I have an extremely elevated level of shared experience with all of the parties to a dispute. That puts me in a particularly advantageous position to help everyone involved find a solution that they can own and know that the solution is a good outcome for their respective clients. I can see a range of acceptable or appropriate outcomes that others without that perspective may not see which can help to resolve a dispute. Once I said to someone in a mediation, “I’ve seen this movie before, all the way from the very start to the very end because I’ve previously written, directed, and acted in one just like it.”
That elevated level of shared perspective that I have with everyone in the room enables me to help all the parties understand what the “landmines” are in their case and their likely impact if they were to go to trial, advancing the case for resolution. By landmines, I mean that, for each side, what are the facts that if they are believed to be true by a judge or a jury would be fatal to their case? This is key since many times, unbelievably, for all the talk about reverse engineering and 360-degree analyses, most trial lawyers are extremely focused on the positive stuff, not the negative stuff in their cases. They need to figure out rebuttals to their case landmines. From there you can find a way to work towards a solution.
In this sense, mediation is remarkably like trial practice because every fact in the trial is not always favorable to your client or to your theory of the case. Any argument in a dispute can be made immensely powerful, especially when amazingly effective advocates deliver it. In bringing the parties to a dispute together to reach a mutually agreeable solution, everybody has to understand that you can be a little bit wrong and still be right, and you can be a little bit right and still be wrong. Once that understanding is in place, you can work the parties towards a solution that benefits everybody.
I think that is the foundation of the value proposition and client experience I bring as a Phillips ADR mediator—an elevated level of shared experience with all the parties to a dispute across a wide range of sectors and matters, along with an acute understanding of the landmines inherent in the cases of plaintiffs and defendants, and the ability to wield that domain expertise, shared experience and understanding of embedded landmines in a way that puts the parties on a path to resolution.
(LP): You made reference to your style of mediation in that last comment, and in your introduction, you also talked about the importance of timing, knowing when to push the parties towards resolution.
(WO): As an advocate, I have participated in countless negotiations in those forums over the course of my four-decade career. You learn over time to not care who takes credit for settlement. My style is that I do not want to give the parties the answer; I want to put questions to the parties in such a way that, based upon what we have done, the parties to a dispute can answer them only one way and see a path forward to resolution. That is another way of saying my style in dispute resolution is to allow the parties to reach an intended or desired conclusion without me having to actually give it to them. Once they land on the answer on their own, all of the posturing in negotiation and group dynamics goes away and everything benefits a path to resolution.
More on William Ohlemeyer: https://phillipsadr.com/our-team/william-s-ohlemeyer/
More on Lynn Phillips: https://www.thinkbrg.com/people/lynn-phillips/
* See: Meet The Ex-Judge Mediating J&J’s Talc Concealment Suit, Law 360 Pulse, February 26, 2024
https://www.law360.com/pulse/articles/1806230/meet-the-ex-judge-mediating-j-j-s-talc-concealment-suit
