Monday, August 31, 2020

What's Up with Division 1 (August 2020)

Tomorrow (September 1st) is the start of the ABA Bar Year.  This is when the changes in the ABA leadership positions formally go into effect.  As such, tomorrow I will officially be the Chair of Division 1! 

I want to take this opportunity to say THANKS to Cassidy Rosenthal for doing a fabulous job as Division 1 Chair.  After serving on the D1 steering committee for many years together and planning the Fall 2017 Meeting together in Boston, I have been really impressed with Cassidy's work ethic, professionalism, and skill.  Division 1 is SO LUCKY to have Cassidy's leadership and friendship.  

During her term as Division 1 Chair, Cassidy created our logo during her term and used the division funds to purchase insulated mugs.  Without complaint, she hauled those mugs to two different meetings to hand them out to members.  I think there may still be a dozen or so of those mugs which I will likely bring with me to San Diego at the midwinter meeting in January 2021.  

During this month's steering committee call, we discussed what we should purchase for the 2019/2020 Bar Year.  We selected D1 branded desk vacuums

I will be mailing these vacuums to Division 1's Steering Committee Members, Liaisons, and other active volunteers.  If you are interested in receiving one of these, please contact me (rtdunn@PierceAtwood.com).  Once you agree to take on an initiative for Division 1, will mail you one of these vacuums!!

We are starting the bar year off with a lot of ideas and energy.  Here are some highlights!

1. Getting Involved in Division 1 Video.  Katie Kohm created a 7 minute video for interested Forum members to learn about how to get involved in Division 1.  She will be sending it out to new members who have joined our ABA Connect page and otherwise circulating it.  Thanks Katie!

2. Law School Outreach Event.  We have our team for this panel discussion assembled.  The event will be moderated by The Dispute Resolver contributor, Lexie Pereira.  The panelists will be Ed Green (D1 In-House Counsel Liaison), Roy Wagner, Alex Dockery, and Patrick McKnight (also The Dispute Resolver contributor).  MJ Torres-Martin and Chris Sullivan are helping plan this event which will likely occur in mid-October.  

3. Construction Checklist Book.  An editor for the Construction Checklist Book sent an email to all Division Chairs asking for input regarding the publication and seeking authors.  I have asked Mike Lane and Jade Davis to lead this effort for Division 1.  

4. Rescheduled Forum Meetings.  The Fall 2020 Meeting in Memphis is not going forward this October.  The Forum leadership is considering conducting this meeting in the Summer of 2021.  The Annual 2020 Meeting is going forward on October 13-16, 2021 at the same location where it was supposed to occur in April -- Sheraton Grand Hotel, Seattle, WA.  

5. Division 1's Tool Box Talks.  Tom Nocar, Dave Ponte, Scott Griffith, and Jade Davis are planning these roundtable discussions for Division 1.  Some are going to be topical while others will be social in nature.  If you have an interest in joining this planning team, please contact me.  

6. The Dispute Resolver.  The TDR team has done a great job with this blog.  They are using video in their posts which is really cool!  Keep up the great work!

I look forward to working with you all as the Division 1 Chair.  Please send your ideas or just raise your hand and we will find a place for you to get involved!    

Our next Division Steering Committee Call is on Monday, September 14th at 3PM ET. Login information is below: 


Meeting ID: 669 178 3882

Password: 826501

Tom Dunn
Division 1 Chair
rtdunn@PierceAtwood.com
401-490-3418

Thursday, August 20, 2020

Don't Let the Distance Destroy Your Communication -- Lessons Learned from Arbitration by Zoom


Is “Remote Arbitration” an oxymoron? Or is it the wave of the future?  While most of the ADR rules allow for video presentation of evidence in an arbitration, there is little guidance on full hearings being conducted through remote procedures. In the past, parties have agreed to present one witness via videotape or videoconference where the witness was not able to travel to the venue of the hearing. However, most parties, lawyers and neutrals have been reticent to agree to fully remote proceedings.  With the continued restrictions required by the COVID 19 pandemic, parties, lawyers, and arbitrators are all starting to look at the need to embrace remote proceedings. Click here for an introductory video from the author.



So What’s the Big Deal About Remote Arbitration?

Most lawyers handling dispute resolution and litigation count on the use of their keen communication skills to present persuasive arguments to the trier of fact in a lawsuit.  In arbitration, the neutral (or panel) is the target of the communication. Lawyers are known for using skill in how to examine a witness to elicit the facts and information needed to present their client’s case. Also, the timely use of an exhibit is key – with the technological advances, some of the best trial lawyers have become quite adept in using video clips, charts, and visual images to effectively communicate information and facts, as well as to engage the tier of fact.  However, the successful lawyer also will use various forms of communication other than the presentation of evidence through witnesses, exhibits, and written briefs. Body language and non-verbal cues are critical to the trial lawyer. In addition, the lawyers in an arbitration often “read” the room – both the neutral and the other parties and counsel present to see how various factual and legal arguments are landing, and the reaction can cause a change in strategy, tone, or emphasis.

Non-verbal communication plays an integral part in effective communication.  “In fact, experts have argued that 70 percent of communication is non-verbal and that includes workplace communication.” Body language can tell you how urgent or serious an issue is. Eye contact and posture can convey confidence or sometimes lack of it. Gestures and movements can show enthusiasm or communicate more than the words express.

“One study from Columbia University found that gesticulation helps a speaker communicate effectively with an audience. Researchers explained that someone who gesticulates actually helps convey the fullness of the message they’re trying to deliver. They’re speaking on two levels at once!” “Business Insider also revealed some rather telling facts on verbal communication. Those stats showed that content is only valued at 7% in a presentation. This was verified in Science of People’s research as well. We can’t stress it enough – it’s not what you say, rather, how you say it." While this may or may not be fully accurate, it is telling that much of our effective communication is not just the words and content of your presentation but how you communicate it that will bridge the gap, even across a video screen.

This is why many lawyers are wary to arbitrate via remote processes – it loses the “feel” of the proceeding where the human interchange and interaction communicates so much more in person across a conference room table than through a screen.

However, with the status of the corona virus pandemic, the future of dispute resolution clearly will be dependent upon the use of remote proceedings, and the well-informed practitioner should come to the proverbial table with an approach to make the most of the remote process.

Four Key Considerations For An Effective Remote Arbitration

As more cases are presented through remote arbitration (potentially jury trials in the near future), there are several considerations that practitioners should keep in mind to ensure the most effective representation of their clients. Of course, reams have been written about communication skills and styles, but there are four key considerations for a remote arbitration proceeding to consider: (1) understanding your audience; (2) getting the evidence to your arbitrator; (3) controlling the room; and (4) managing the technology.

1. Understanding Your Audience

While it is important to know your arbitrator’s background, most counsel are not vetting the neutral’s ability to use technology or how the neutral will be able to engage in the process over video or control the process and witnesses.  This is a difficult skill to assess. However, many arbitrators have been working diligently to come up to speed on the technology and have familiarized themselves with the various platforms.  Once more arbitration occur, some neutrals will likely further distinguish themselves in their abilities to manage remote arbitration hearings.

Don’t let the age or background of a neutral be your guide, however.  There are many younger neutrals who are not adept in using the remote programs and older neutrals who are tech savvy and have every cutting edge device available.

Regardless, it is imperative to know and understand who your arbitrator or panel is and the work with your neutrals to ensure that they feel comfortable with the process, the platform, and the related technology needed, such as the right video camera(s).  Before you begin a remote hearing, if the arbitrator does not ask for it, request a joint session to practice on the platform, including ensuring that the arbitrator understands and knows how to control the process and that all can access and view the exhibits effectively. You may wish to have a technology person available for the practice and the remote hearing itself to assist the arbitrator.

2. Getting the Evidence to the Arbitrator

Be sure that you have worked with the arbitrator to have all of the proper procedures and rules in place to allow for an effective remote hearing as well as to ensure that you can get the necessary evidence to your arbitrator.

Do the Rules Provide For What You Need?

Each of the main arbitration providers’ arbitration rules have some rules that address – at least in part - virtual hearings. However, the perceptive practitioner will review the rules and scheduling order carefully to ensure that the evidence needed can be effectively presented. Notably, there is little formal guidance currently for a full merits hearing by internet or other remote presentation.

JAMS Rule 22(a) acknowledges that an arbitrator may vary procedures so long as they are reasonable and appropriate. Rule 22(g) authorizes an arbitrator, at his or her discretion, or upon the parties’ agreement, to conduct the hearing through virtual platforms, stating: “(g) The hearing, or any portion thereof, may be conducted telephonically or videographically with the agreement of the Parties or at the discretion of the arbitrator.” Like JAMS, the American Arbitration Association is mindful of maintaining the efficiency of arbitrations while securing the parties’ rights to be heard and to present their cases (See, R-32(a), AAA Commercial Arbitration Rules and Mediation Procedures). Rule 32(c) gives the arbitrator the right to “allow for the presentation of evidence by alternative means including video conferencing, internet communication, telephonic conferences and means other than an in-person presentation” but also requires that “[s]uch alternative means must afford a full opportunity for all parties to present any evidence that the arbitrator deems material and relevant to the resolution of the dispute and, when involving witnesses, provide an opportunity for cross-examination.”

Neither the International Institute for Conflict Prevention & Resolution (“CPR”) the International Chamber of Commerce (“ICC”), the London Court of International Arbitration (“LCIA”), nor the Singapore International Arbitration Centre (“SIAC”)  provide any specific rules for full merits hearings by video. There are not specific rules for how such video hearings should proceed in any of the ADR providers’ rules; therefore, counsel should seek a scheduling order with specific details on how the proceedings are to be conducted including the split of time, presentation of witness testimony and hearing timetables, production of exhibits, and opening and closing statements.

Getting the Witness Testimony Clearly Communicated

Many practitioners are concerned about the ability to test the credibility of witnesses in a videoconference format. However, this issue can be overcome with careful preparation of the witnesses, and having clear rules in the scheduling order addressing where and how witnesses can be presented (ensuring there is no coaching or others in the room).  In fact, many arbitrators assert that credibility issues are not as critical as many lawyers may believe. The arbitrator will still be able to observe the witness during video testimony and observe facial expressions and reactions. In fact, as stated by arbitrator Wayne Brazil, “We can see initial reactions to questions, reluctance to respond, indirection, indecision, circularity, obfuscation — as well as forthright, straight-on answering (which, we've learned, sometimes can pose the greatest threat to making accurate findings). Given these facts of videoconferencing life, the real question is this: How much is an arbitrator's ability to assess credibility compromised, really, when he or she watches a witness testify, live, on a big screen, instead of watching the witness testify a few yards away in person?”

Instead, when it comes to witness testimony, you must ensure that you are preparing your witness to testify to the arbitrator – but instead of looking at the small screen of the questioning lawyer, the witness needs to be trained to look at the camera on his screen.  When reviewing an on-screen exhibit, the witness should also be trained to periodically look up at his or her camera to respond to the question. One tip is to advise witnesses to imagine the arbitrator is ‘in the camera” and to focus on that instead of the small box of the questioning attorney.

Who Has Control – Remote Exhibits

One of the most important issues that is a difference for many practitioners is the handling of exhibits in a remote proceeding.  Depending on the agreement of the parties, the exhibits can be exchanged in advance between the parties and a set provided to the arbitrator electronically for use during the hearing, or the exhibits can be uploaded onto the remote proceeding site.  If the exhibits are exchanged in advance, a set will also need to be provided to the witness in advance; it is recommended that they be placed in a sealed envelope to be opened by the witness on screen once under oath.

If the exhibits are presented “live,” the question of how to maneuver through the document can be handled by giving the witness “control” of the screen and mouse to scroll through to specific portions of the document. To do this effectively, counsel will need to have carefully pre-prepared the documents and have a separate copy either in hard copy or on a second screen to ensure a crisp and clear presentation of the information to the arbitrator.

Cross-examination and introduction of exhibits that were not pre-planned will be a bit more challenging in a remote setting.  However, having a set of potential exhibits pre-marked can address this issue. For rebuttal, one good option is to have anticipated potential exhibits saved on your desktop and carefully described/labeled with your prepared cross-examination.  Counsel should practice in advance of the hearing uploading the exhibits and while asking questions.  If appropriate, particularly for document-intensive cases, like many construction cases, having a paralegal or tech assistant participate and upload your exhibits will make the process more streamlined and prevent counsel from distractions of trying to find the right exhibit.

3. Issues Raised By Who Is “In The Room”

One other question to consider before you proceed with the arbitration hearing is how to maintain the confidentiality of the process and who will be allowed to be in the videoconference and when. Will witnesses be held in a “waiting room” and be admitted when their time slot is ready?  Will counsel have pre-set times for when witnesses will be called? Will witnesses be called out of order? These issues will require a discussion of counsel and the arbitrator to resolve these issues in advance.

4. Technology- Choose the Platform

What platform will be used is another consideration that will need to be agreed upon early on. This will allow counsel sufficient advance time to practice and be familiar with the platform. In addition, you can work with your witnesses to practice, particularly with how to work with the exhibits and how to readily find sections on the documents in response to questions posed.

One key issue is to anticipate and plan for technology hiccups.  Have a designated person for trouble-shooting on standby to jump in and have a ready text message to bring them into the call. In addition, be sure that the arbitrator and counsel provide and exchange contact information and the arbitrator should also be provided contact information for all witnesses in case of connection issues.  You also may want to consider having a fall back of what to do if there is a problem with connection for any particular witness – will you have them dial in only or require webcam access? Thinking through and having a backup plan will give you more peace of mind and take away the distractions during the hearing.

Overall, conducting a remote arbitration is not the most ideal scenario, but effective lawyers can prepare their witnesses, ensure clarity and credibility of their cases and presentations by being aware of use of non-verbal communication to support their cases, and pre-planning and preparing exhibits carefully and having a plan in place for maneuvering through exhibits to ensure that the information you want the arbitrator to see, understand, and digest.  In addition, paying careful attention to the technical details and discussing how the witnesses will be presented will allow for a smoother process where the more confident counsel’s case can be effectively presented to the arbitrator.

Addendum: Construction companies and practitioners should be aware that some of the ADR providers are starting to develop protocols for remote arbitrations. In fact, CPR has developed a Model Procedure Order for remote arbitrations. The model order can be found here.

Author Brenda Radmacher is a Partner in the Los Angeles office of Gordon Rees Scully Mansukhani LLP and a noted expert in construction law.  Ms. Radmacher is called on as a counselor, litigator, and noted speaker on issues involving land owners, general contractors, developers, and builders.  Ms. Radmacher's practice emphasizes resolving complex construction disputes through negotiation, mediation, and, when necessary, arbitration and litigation, on projects in California, nationwide, and internationally.


Wednesday, August 12, 2020

Virtual Arbitration CLE - August 19 1PM ET

With many civil court proceedings on hold or delayed indefinitely, online arbitration is becoming more and more prevalent.

The ABA Forum on Construction Law's panel includes two litigators (including a Division 1 member - Jessica Sabbath) who gained their experience in virtual hearings after their in-person hearing in New York City was shut down abruptly due to the pandemic. 

The panel also includes a senior representative from the American Arbitration Association. 
This CLE will explore the legal issues presented by online hearings, applicable arbitral institution rules, and discuss important considerations and best practices for conducting an arbitration hearing remotely.

Register: https://www.americanbar.org/events-cle/mtg/web/402246508/

1.5 credits of CLE are eligible and registration closes at 10am ET on August 19th.  

Friday, August 7, 2020

Forum's Diversity + Inclusion Brunch (August 20th at 1-2PM ET)

Division 1 Members, the Diversity and Inclusion Committee of the Forum is starting a monthly brunch series.  The first one is scheduled for later this month on August 20th at 1PM ET.  Please register!   

Diversity + Inclusion Brunch

 

This free webinar will be featuring speaker Tewanee Joseph, CEO of Tewanee Consulting Group, a First Nations-owned and operated company, and leader in planning the 2010 Olympic and Paralympic Winter Games. Mr. Joseph, will discuss how the 2010 Winter Games’ management team’s focus on inclusion was a critical element in ensuring the Games’ success and lasting legacy. 

Date: August 20 | 1-2:00 pm ET

Speaker: Tewanee Joseph, CEO of Tewanee Consulting Group

 

Register Now  ❯❯

Tuesday, August 4, 2020

Meet D1's Neutrals - Adrian L. Bastianelli, III

As the litigation and dispute resolution division of the Forum, our members regularly serve as arbitrators, mediators, and other neutrals who resolve disputes. In an effort to promote and educate our membership about our talented neutrals, D1's Incoming Chair, Tom Dunn, decided to spearhead a series here on The Dispute Resolver blog to feature our Division 1 Neutrals (email him at rtdunn@pierceatwood.com if you'd like to be featured!).

First up is Adrian Bastianelli, III, one of the most seasoned construction lawyers who has served as a Chair of the Forum, is a fellow of the American College of Construction Lawyers, and was among the first class of construction neutrals. D1, Meet Adrian!



ADRIAN'S MEDIATION PRACTICE

When and why did you choose to become a mediator?

In approximately 1988, a mediation provider in Seattle, who saw construction as a new mediation market, contacted a group of construction lawyers who were active in the Forum and invited us to a weekend training session.  After taking the course, all of us were convinced that mediation was the wave of the future in resolving construction disputes.  I devoured every course and writing available on mediation.  Since I had been doing arbitration for ten years by that time, AAA put me on their initial mediation panel, where I have resided for the last thirty years.

While serving as a mediator is very taxing because you are being pushed by both lawyers and their clients, who know the facts and law far better than you and are trying to convince you to help them maximize their position in the settlement, it is very satisfying when you can help the parties reach a settlement that they might not have achieved without you.


Can you describe your mediating style? 

I follow the principals of Guided Choice mediation.  I encourage parties to mediate as early as possible because that is when (1) there are more opportunities for business solutions to achieve a win-win settlement, (2) costs can be minimized, and (3) positions may not have hardened as much.  I prefer a robust pre-mediation phase during which I attempt to ensure that the parties have an adequate exchange of information, without an expenditure of an unreasonable amount of money.  I also use the pre-mediation phase to develop a relationship with the principals and lawyers, educate the parties, design the mediation process for the particular dispute, and identify the interests and positions of the parties, obstacles, and people problems.  While a vigorous pre-mediation phase has become more accepted in recent years, it still is often limited to ex parte conference calls between the mediator and each of the lawyers.  With the advent of virtual mediation due to COVID-19, I am using Zoom for pre-mediation with the decision maker, lawyer, myself, and possibly others on a video call, thereby, developing a relationship with the principal and more thoroughly delving into the issues.  The virtual pre-mediation conference is far better than the perfunctory telephone call with the lawyers.  As a result, I believe the virtual pre-mediation will be around long after the virus is gone.

I am first a facilitator to help the parties explore and focus on the reasons for settlement including their business interests and issues. In addition, I help the parties understand the alternative if a settlement is not reached. If facilitation does not work, I engage in evaluative mediation.  I attempt to educate each party regarding the other party's arguments and how the trier of fact might view the issues.  I review the cost of litigation and arbitration with the parties, including the non-legal costs and potential damage to business interests.  I look for innovative ways and opportunities to help both parties achieve their goals and interests.  For example, in one case a public owner and contractor were locked in a high stakes battle in the middle of the project over a very difficult legal issue and were headed for the court room and ultimately the State Supreme Court to determine a winner many years later.  At the same time, the public was being severely inconvenienced by the actions of the contractor allowed by the contract and which the owner had no ability to stop.  I changed the focus of the mediation from the risks and costs involved the legal issue, which was the original focus of the mediation, to the business interests of the parties, i.e., could the contractor change its method of operation to eliminate the public inconvenience.  The result was a win-win resolution for the parties.   I use closing techniques that are appropriate for the circumstances of each case, including a mediator's proposal.  However, a well-known precept of mediation controls the bounds of my closing techniques: it is the parties' choice on whether to settle and on what terms.  The parties ultimately control the decision to settle.  If the parties cannot reach a settlement, I try to help them develop a cost-efficient and expeditious method of resolving the dispute in litigation or arbitration, including selection of an arbitrator, developing a plan for discovery, and limiting the issues in the arbitration.


What is a common mistake you see parties and/or their counsel employ in mediation and what steps do you recommend to avoid it?  

Probably the most common mistake I see parties employ in mediation is making an inaccurate evaluation of the party’s likelihood of success, risk, cost of litigation, and business interests, which often comes from a lack of preparation and an objective view of the facts and law.  Mediation is well suited to address this problem because the parties’ evaluations and analyses will be tested at every turn, which hopefully will cause each party to change their expectations and analyses at the end of the mediation resulting in settlement.


What is the most important skill to have as a mediator?

I always cite the three P’s: preparation, patience, and persistence.  Too many people shoot from the hip in mediation and don’t recognize that the more prepared you are, the better you will do in mediation.  Nothing is more important than preparation.  Culturally, most Americans want to achieve settlement as quickly as possible.  Patience is seldom viewed as a virtue.  However, in mediation, the person who hurries will seldom do as well as the patient one and may, therefore, lose the settlement entirely.  Finally, when a party says no, the mediation is not over.  Instead, the party who is still on the ship needs to be persistent and try other approaches, or at least find other objectives, that can be achieved in the mediation.  Don’t ever give up.


ADRIAN'S ARBITRATION PRACTICE

When and why did you choose to become an arbitrator?

I started a new law firm with another lawyer in 1978 and was afraid we would go broke, so I walked across the street to AAA and asked to be put on its panel. Mind you, this was at a time when the AAA’s pay for arbitrators was minuscule and there were few construction arbitrators.  It was a very lucky move for me because my personality and background fit the job, and ADR grew dynamically in construction, as the industry searched for and found better ways than litigation for resolving disputes that are inevitable in large construction projects. .


Can you describe your arbitrating style? 

The arbitration is a dispute resolution process agreed to by two parties through a contract.  Therefore, I try to work with parties to help them find an arbitration process that economically and expeditiously achieves a fair and just result that is in line with what they contracted for.  I encourage parties to be innovative in developing their procedures. However, I also understand that my job is to call balls and strikes, and I must do so in a fair, decisive, and expeditious manner if the parties cannot agree amongst themselves. I bring an engineer’s mind and training to the table, and, therefore, am not afraid to dig into the technical and scheduling issues. I take command and maintain control of the hearing room, while remaining courteous and respectful to the lawyers, witnesses, and party representatives.


What is the most important skill to have as an arbitrator?

Neutrality.  The minute the parties believe you are not neutral, you will no longer have an arbitration practice.  In addition, decisive analytical skills are essential. The construction arbitrator needs to have the ability to sift through and analyze extensive factual information and difficult legal arguments to arrive at a logical award in an expeditious and decisive manner.


What should drafters consider when drafting an effective arbitration clause?

One size seldom fits all. Too often the parties attempt to draft a single detailed clause that fits all disputes from the $10,000 mini-dispute to the $100 million mega-dispute.  That does not work. In my opinion, the parties’ primary goal in drafting an arbitration clause should be to agree on a method to select an arbitrator or arbitration panel that both parties trust to assist them in developing procedures that fit the specific dispute that is being arbitrated. The ability to design the procedures to fit the dispute and parties is one of the real advantages of arbitration over litigation.  Thus, in my opinion, the key to an arbitration clause is arbitrator selection, since selecting the right arbitrator can provide an expeditious, economical, and just result.  The parties can list a group of pre-approved arbitrators in the contract alongside a clear method of selecting the panel from that group when the dispute arises. The rules of an arbitration provider, such as AAA, should be incorporated into the agreement as well, so as to cover issues not specifically addressed in the clause.


What measures do you take as an arbitrator to ensure arbitration is less costly and more efficient to litigation?

I am always trying to fit the process to the dispute in a way that reduces costs and time.  One example of a technique that has worked for me when there are a lot of claims is an Excel spread sheet that lists each claim by number, a short description of the claim, the amount claimed, a list of exhibits that support the claim, the defense to the claim, the maximum amount Respondent believes Claimant can recover assuming it wins, and a list of exhibits refuting the claim.  With this spreadsheet in hand, the proceedings may be streamlined and often little or no testimony is needed on the smaller claims. The advantage of arbitration is that there are many ways to reduce costs, which is, of course, mostly dependent on the nature of dispute and the parties to the arbitration.


GET TO KNOW ADRIAN & HEAR HIS TIPS FOR FELLOW DISPUTE RESOLVERS

What geographic area will you serve as a mediator/arbitrator?

I serve on arbitrations and mediations throughout the United States and internationally.  My home turf is Washington, D.C. and the surrounding areas including, Baltimore, western Maryland, and Northern Virginia.


What is your experience and thoughts regarding virtual ADR?

I have just started doing virtual mediation and have several virtual arbitrations on my calendar for which I am preparing.  I have taught three webinars on virtual ADR and have written a paper on virtual mediation that will be published shortly. 

Live music is better than recorded music, even if it is Memorex – likewise, live ADR is better than virtual ADR.  However, virtual ADR is what we have at this time and we can, and must, figure out how to make it work.  In addition, there are some real advantages to virtual ADR, i.e., the reduction in cost to fly and house witnesses, lawyers, company representatives, and arbitrators/mediators to the site, the lack of standby for those participants waiting for their turn, the ability to reconvene the next day if the case does not settle, and many others.  As mentioned above, maybe the most significant development is virtual pre-mediation. As lawyers handle more virtual cases and improve their virtual skills, so too will the viability and acceptance of virtual ADR.


How can ‘dispute resolvers’ better resolve disputes?

Dispute resolvers can improve their likelihood of success by laying a strong foundation, i.e., being thorough and realistic in their evaluation of the risk and cost of litigation and imaginative in developing the procedures to resolve disputes. Although most lawyers simply default to what they are used to doing, there are so many ways to attack resolution of a dispute that will produce reasonable results at a lower cost.


How does the Forum and Division 1 relate to your mediation and arbitration practices?

The Forum and Division 1 have been one of the main reasons my mediation and arbitration practices have been successful.  Many of my cases come through acquaintances I have made at the Forum.  In addition, the Forum has provided me with many great educational programs that have, in turn, made me a much better mediator and arbitrator.


What was your first Forum meeting?

My first Forum meeting was a lunch in Washington, D.C. in approximately 1985.  There were only a few attendees and most of them were surety lawyers.  Wow, how the times have changed.


What hobbies, activities, or interests do you do outside of work and the Forum? 

I spent twenty years coaching kids’ basketball and many years playing basketball, tennis, golf, and running.  My creaky bones now limit me to the golf course.  While I have no musical talent, I love music of all kinds, and my wife has led me to the theater.

_____________________________________________________________

Adrian L. Bastianelli, III is a Partner at Peckar & Abramson. His practice focuses on construction claims and litigation, with an emphasis on government construction contracts. He represents all sectors of the construction industry, including general contractors, subcontractors, owners, design professionals and sureties. Mr. Bastianelli also has an active alternative dispute resolution (ADR) practice. He has served as an arbitrator, a mediator, and a DRB member on hundreds of construction disputes.

Contact Adrian: ABastianelli@pecklaw.com | 202.293.8815

_____________________________________________________________

Neutrals interested in being featured can contact Tom Dunn here: rtdunn@pierceatwood.com

Editor Lexie R. Pereira is an incoming third year J.D./M.B.A. student at Boston College Law School and Carroll School of Management, studying to become a litigator, with a specialty in construction law. Currently, she works as a legal intern at Consigli Construction Co., Inc., serves on the Editorial Team of the ABA’s Forum on Construction Law’s Dispute Resolver blog, and acts as the new 2020 Student Liaison of the ABA's Forum on Construction Law. This summer, she was invited to rejoin Hinckley Allen as a Summer Associate with a focus in the Construction and Public Contracts group. At school, Lexie is the President of the Real Estate Law Society and the President of the Eagle-to-Eagle Mentoring Program. Lexie earned her B.A. and a varsity letter from Boston College in 2017. 

Contact Lexie: pereirle@bc.edu | https://www.linkedin.com/in/lexie-pereira/