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.
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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
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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/
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