Tuesday, October 20, 2020

Mexico: Step by Step Toward a Range of ADR Options

The United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention on Mediation, entered into force a month ago. The Convention applies to agreements that result from a mediation of a commercial dispute where at least two of the parties are in different States or that the obligations resulting from the settlement are to be performed in a different State from where the settlement agreement is rendered.


According to the United Nations Treaty Collection, by October 15, 2020, there were 53 signatories, including nations like Chile, Colombia, United States of America and Uruguay; and 6 member states parties to the convention (Belarus, Ecuador, Fiji, Qatar, Saudi Arabia and Singapore). As a Mexican law practitioner, the question is: How is Mexico doing in the area of ADR?


An issue in Mexican contractual relationships, especially in the construction industry, is the way to resolve conflicts.  Regardless of the size or amount of the project, there are generally several parties that look only to their own interests and lose sight of moving the project forward.


Mexico belongs to the civil law system which means that legal relationships are ruled, most of all, from the written law, and even when arbitration has been implemented, the practice is tied to traditional litigation to solve disputes. Additionally, jurisdictional procedures are very formalistic regarding practices like the value of the evidence (most documentary evidence shall be original or certified copy), inter alia.


The use of arbitration has been increasing considerably in complex construction, infrastructure and energy sectors which brings the certainty that a professional in the field who is familiar with the day-to-day in the construction industry will resolve such a specific dispute, rather than a judge whose expertise and knowledge in law would be invaluable, but who would not be necessarily an expert in construction.


Notwithstanding the foregoing, arbitrating during the construction project does not provide a real solution because, in general, arbitration focuses on who wins and who loses, rather than the main objective of the project and its correct performance.


It is worth mentioning that it is not my intention to undermine arbitration. I am a happy practitioner and a lover of arbitration; however, to be honest, arbitration is not always the best ADR option taking into account that in the construction industry, one of the most important objectives is to continue with the projects and avoid unnecessary suspensions or delays in the project.


For those reasons it is necessary, at least in the construction industry, to implement in contractors a culture in which the contractors themselves are the ones who actively participate in the resolution of disputes arising from the contracts to which they are a party.


In that regard, once again the question that needs to be answered: How is Mexico doing in the area of ADR?


An initiative of law has been submitted in the Mexican congress. This initiative is to render an Alternative Dispute Resolution Law, which has as its purpose a social one (as communitarian or indigenous and scholar mediation) but not exactly a commercial one (for commercial mediation is proposed to amend several articles from the Commercial Code). However, if it is approved, it will be the first step to a conciliatory culture and will have a direct impact in the commercial, and of course, construction field.


It is the job of Mexico’s young practitioners to search for new areas in which to innovate, looking around at different experiences like the Peruvian where “Dispute Boards” were used in the Pan-American Games project, helping to avoid unnecessary delays and to carry on the project in a healthy manner, and to try to reach and implement advanced ADR techniques specifically in the construction industry such as the Dispute Boards, where a board of 1 or 3 people resolve in a very quick way, technical disputes, without stopping or delaying the project and eroding contractual relationships, and its resolutions are, depending on the format of the Dispute Board, enforceable.


There seems to be a long way to go, but Mexico has taken the first step by submitting the initiative of Alternative Dispute Resolution Law. I hope that Mexico will get there, step by step, to a place where a range of ADR options are available not only through legislation but also in the contracting culture.


Author Juan Pablo Sandoval GarcĂ­a is an Associate at COMAD S.C. (www.comad.com.mx). His email address is jpsandoval@comad.com.mx.

 

Monday, October 19, 2020

Sign up for Tomorrow's Building Results Construction Law and Networking Virtual Program


Register: https://www.americanbar.org/events-cle/mtg/web/405628927/

This Division 1 Planned Program will start tomorrow (10/20) at 5PM ET with an excellent Division 1 panel discussion about the practice of construction law and ADR for law students.

The second half of the program will be networking with law students, members of the ABA Forum on Construction Law and members of the Construction Litigation Committee of the ABA Section of Litigation.

We will have two 15-minute zoom networking breakout rooms with an excellent group of discussion group leaders.  

Thanks to our panel members (shown above) and planning team members (Chris Sullivan, Lexie Pereira, Roy Wagner, and MJ Torres-Martin) for their work to put this program together.  

Tuesday, October 13, 2020

Register for the Forum's D&I Brunch on October 15 at 1pm ET

October 15, 2020 | 1:00 - 2:00 pm ET

Join us as DeRetta Rhodes, Senior Vice President of People Capital for the Atlanta Braves, and Tom Garrett, Chief Human Resources Officer for Brasfield & Gorrie, one of the nation's largest privately held construction firms, share how their organizations seized this opportunity to transform D&I initiatives into a diverse and inclusive culture.



Monday, October 12, 2020

Meet D1's Neutrals - Andy Ness


We are excited to introduce Andrew "Andy" Ness for this month's Meet D1's Neutrals feature! Andy is an experienced arbitrator, mediator, and neutral, who joined JAMS in 2019 after 40 years of construction law practice. He graduated from Harvard Law School and was a partner in four major firms, most recently Jones Day, during the course of his career. We asked him to tell us more about his mediating/arbitrating style and to share practical tips with our fellow ‘dispute resolvers.’ D1, meet Andy!

Click here for a short video intro from Andy!


ANDY'S MEDIATION PRACTICE

When and why did you choose to become a mediator?

In all the many mediations where I was an advocate, I watched the mediator closely. This, of course, helped me to advise my client how to proceed, but it also helped me learn what does and doesn’t work in the circumstances of a case.  I was fascinated by the complex combination of skills that were required, as well as how a good mediator could seemingly work magic to get a dispute settled.  Naturally, I started thinking about doing it myself. So, when the opportunity to join JAMS arose, I was ready.


Can you describe your mediating style?

In my observation, successful mediators all seem to have a unique personal style that fits their personalities.  My style is still somewhat evolving, but my touchstone is to stay true to myself and my personality because I know that is how I can be most effective.  So, if you happen to know me already, I expect my mediation style will seem familiar:  it’s a combination of informality, intense analytical focus on the key issues separating the parties, doggedness in pursuit of a deal, and a bit of humor here and there to keep everyone grounded.


Do you have a standard mediation practice regarding pre-mediation exchange of information/memorandum and joint sessions?  If so, what is it?

For pre-mediation, I do not have a standard practice, but I am finding the importance of pre-mediation efforts increasingly important.  Interestingly, video mediations only seem to magnify the importance of the pre-mediation sessions.  So, I stress working with the parties to assure that they arrive at the mediation prepared and ready to make a deal, with a person in attendance who is truly authorized to settle the dispute.  Each side needs to know enough about the case to be able to assess their risks realistically, which sometimes means that more information exchange in advance is needed.

As to joint sessions, I am flexible in having party presentations at the outset.  I find that it’s not unusual for the presentations to actually be counterproductive, or, at best, an unproductive use of time.  So, I do not insist on having them, unless there is reason to believe that the decision-makers will actually benefit from learning more about the dispute from the other side’s viewpoint.  I always encourage any presentations to be brief, to the point, and focused on facts, and not arguments, as those are the most effective presentations for mediations.


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

Parties and counsel usually say the right things – they are willing to be open-minded, serious about settlement, truly eager to hear and understand the issues with their case, and ready to work hard to achieve a resolution.  However, their actions at the mediation often demonstrate just the opposite: they want to quit after the other side’s first offer is lower than expected, seemingly having shown up just on the off chance that the other side was ready to surrender. 

D1’s ‘Dispute Resolvers’ ought to remember that successful mediation almost always requires squarely facing up to new information and input, and making hard decisions and compromises.  And while mediation moves at lightning speed compared to arbitration, it nevertheless requires considerable patience with the process.  I like to work with all parties and counsel in advance to get acknowledgement of the realistic challenges of making mediation work.


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

There are so many, and that is part of why mediating is a fascinating job, but, in general, the people skills are usually most important:  active listening, reading the room, having empathy, and acquiring a well-developed sense of timing in terms of when to push which button.


ANDY'S ARBITRATION PRACTICE

When and why did you choose to become an arbitrator?

After law school, I was a judicial law clerk in a US District Court.  Like every law clerk, I thought about what it would be like to be a judge.  As the years passed, I realized that rather than being a judge and hearing all sorts of cases, the opportunity to bring my depth of experience in one area – construction law – to bear in hearing and deciding construction cases was much more attractive.  Frankly, I have much more to offer the parties in a construction case, and that is key to why I enjoy arbitrating so much.


Can you describe your arbitrating style?

As when mediating, I let my personality and sense of humor show a bit, while remaining laser-focused on the important issues.  I am always looking for ways to make the process more efficient and effective.  When questions occur to me, I ask them, whether it is to make sure I understand the point or to probe more deeply into a significant issue that seemingly is being given short shrift.  But I always keep in mind that it is the attorneys’ case to try, and my role is not to interfere in their case presentation.

Also, I have one distinct preference, which is to have a real-time transcript.  Try as I might, I sometimes miss a question or two when making a note, and the real-time transcript lets me make sure I am getting all the testimony.


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

Reserving judgment until all the evidence is in.  I have appeared before too many judges during my career who seemed to have their minds made up early in trial, whether for me or against me, and vowed not to fall into that trap.  But there is skill and mental discipline involved in deferring judgment until the end, and it’s a skill you do not develop when you are in the advocacy role.


What should drafters consider when drafting an effective arbitration clause?

It never ceases to amaze me what crazy things find their way into arbitration clauses that become only needless impediments during an actual arbitration.  Just in recent months, I have encountered entirely impractical time limits (like 30 days) for the hearing and decision (as if the only disputes that will arise will be very simple, which is clearly not the norm for construction cases!), arbitrary discovery limits, and specifying that the Federal Rules of Civil Procedure (or even the Federal Rules of Evidence) must be applied.  There was even one provision precluding having an evidentiary hearing at all.

The best arbitration clauses stick to the basics and provide a broad “all disputes arising under or relating to” arbitrability clause, specification of applicable rules (the JAMS Rules are worth considering here, and offer some advantages over other alternatives) and venue, number and basic qualifications of arbitrators.  Plus, a statement that the decision will be final and binding is critical.  Since consolidation of related disputes is a frequent issue in construction cases, it also makes sense to address whether and when related cases may be heard together.  However, as you can likely glean from what I said earlier, further elaboration on allowable discovery, arbitrary time limits and the like are generally not helpful because the nature and complexity of the eventual dispute cannot realistically be foreseen when the clause is written.  It’s generally better to pick good arbitrators and let them, in conjunction with counsel, manage the case efficiently in a manner best suited to the actual dispute.


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

Emphasizing that the hearing date, once set, is not going to moved, absent really compelling reasons, and making sure that enough days are set aside to assure that the hearing can be completed without an interruption. 

I also am very comfortable with the techniques used in international arbitrations to shorten hearings, such as written fact-witness statements in lieu of direct testimony, using expert reports supplemented by presentations in lieu of direct testimony, panel testimony of experts (“hot tubbing”), chess clock procedures, and the like.  These techniques are slowly gaining popularity in U.S. arbitrations, where they make sense, as counsel gain experience with them.  I do not force such ideas on the parties, but I generally highlight how they can be efficient and cost-effective, and are worth considering.


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

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

I work world-wide.  My first international dispute, about building offshore oil platforms for the Arabian Gulf, came along in 1986, and international matters have been a part of my practice ever since.  I love the challenges of dealing with people and parties from very different cultures.  In addition to matters all across the U.S., my experience at this point includes disputes in Europe, Asia, South America and the Middle East.


What is your experience and thoughts regarding virtual ADR?

I have little doubt but that virtual mediations in particular will continue to be popular even after pandemic restrictions are over.  For many cases, the advantages in terms of cost savings and flexibility are too significant.  JAMS mediators generally report that settlement seems to be a bit harder to achieve in the virtual setting, but, all in all, it works amazingly well.


How can ‘dispute resolvers’ better resolve disputes?

The key is keeping firmly in mind that for 98% of clients, winning a favorable award at the end of arbitration is not the goal.  The goal is, instead, to swiftly achieve a settlement or other resolution that is consistent with the clients’ business objectives, at as little cost as possible.  Certainly, settlement is not always achievable and arbitration is necessary, but I am favorably impressed when counsel appreciate that working out efficiencies in the process and not bickering over procedural details benefits both sides and prejudices neither.


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

The Forum and the Divisions, especially Division 1, are my professional touchstones.  Forum meetings keep me in touch with my construction lawyer friends around the country.  And I always go home happy to have learned a new thing or two about current trends and what is happening in the industry.  In every case I arbitrate or mediate, it seems like something that I learned through the Forum becomes useful and benefits my efforts as a neutral.  The Forum has been a central part of my development as a construction lawyer and a major source of fun experiences and lasting friendships.


What was your first Forum meeting?

I actually attended the Forum’s very first Annual Meeting, which was held at the Brown Palace Hotel in Denver in the early 1980s.  I didn’t really get hooked on the Forum until about 1998, however, when I was asked to join the Division 10 Steering Committee.  I have been very active ever since, moving through the ranks until becoming Chair in 2012-13.What hobbies, activities, or interests do you do outside of work and the Forum? 

I am an inveterate traveler and enjoy visiting and exploring new places, both in the U.S. and internationally.  As I like to say, there are very few places I am not interested in visiting at least once.  I also spend a lot of time on my bicycle.  Hiking in the mountains, however, is probably my favorite way to spend a day.


_____________________________________________________________


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!).

_____________________________________________________________

Andrew D. Ness, Esq., CIArb brings 40 years of domestic and international experience in resolving complex business disputes, with expertise in construction, engineering, design and energy issues. As an advocate, Mr. Ness represented contractors, engineers and other design professionals, as well as owners and developers, on an extraordinary range of projects and problems, including numerous megaprojects around the world. He has played a lead role in major domestic and international arbitrations and mediations involving large, highly complex disputes across a wide variety of diverse jurisdictions and arbitral rules.

A consummate professional, Mr. Ness is well known for cutting through entrenched positions to find creative, practical solutions. He combines intelligence and humor with outstanding problem-solving skills. One of his many strengths is the ability to distill complex facts and issues to their essence. Mr. Ness also has extensive experience handling federal and state government projects and contracting issues, including manufacturing, production and project delays.

Contact Andy: adness@jamsadr.org | 202.492.9180 
Case Manager: Stacey Harrison: sharrison@jamsadr.org 
_____________________________________________________________

Editor Lexie R. Pereira is a third year J.D./M.B.A. candidate 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 Law Clerk 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/

Tuesday, October 6, 2020

What's Up With Division 1 -- REGISTER FOR OUR 10/20 BUILDING RESULTS PROGRAM

Well . . . summer is now over, and if you are anything like the Division 1 members I have spoken with, you are now consumed with a backlog of zoom depositions and rescheduling of mediations and arbitrations.  While it may have taken us (and the courts) a few months to get here, we are now embracing the change and improving our advocacy skills through the virtual platforms.  It is stressful, exciting, (surprisingly) productive (sometimes), and yet (often) unpredictably inefficient.  

In other parts of our country or with certain cases, in-person proceedings are picking up.  I learned that two Division 1 legends have been engaging in in-person arbitration hearings with each other in recent weeks (sounds like a good upcoming Division 1 lunch program!).  

At Division 1, we can discuss our experiences with each other during this time period of rapid change and come out of it all the stronger.  

As dispute resolvers, Division 1 Members are resilient and, with our colleagues, will develop the best practices together to represent our clients in the best possible manner during the COVID era.  Keep up the good work.  If you want to share your experiences, contact me or another member of our Steering Committee and we can find a way to help you share your best practices (through this blog, a program, or some other mechanism).  

I am excited to highlight and encourage your attendance at one upcoming program planned by Division 1 on October 20, 2020 at 5PM ET.  


The Forum has a strong history of recruiting law student members.  Pre-COVID, many of us visited our local law schools to talk about the practice of construction law and the benefits of joining the ABA Forum on Construction Law.  

Division 1 (and The Dispute Resolver blog) is lucky to have Lexie Pereira (the Forum's law student division liaison) as an active member of our team.  Along with Roy Wagner, the Forum's Membership Committee representative, Lexie and others from Division 1 have planned the Building Results: A Panel for Law Students Interested in Dispute Resolution & Construction Law for October 20th at 5-6:30 PM ET.  It is our effort to virtually reach out to law students encouraging them to learn about the practice of construction law and the Forum.  

The first half of the program will be a panel discussion led by four excellent Division 1 members of diverse practice areas and experience.  

The second half will be a networking component.  That is where we NEED YOUR HELP! This networking session will be an opportunity for you to meet law students who are interested in the practice of construction law, but also to network with your fellow Forum members.  

Please register for the program by CLICKING HERE

Please also spread the word to your local construction bar associations and law schools!

If you have any questions or suggestions regarding the program, please contact me (rtdunn@pierceatwood.com).  

Keep up the great work Division 1!  If you are interested in getting more involved with our Division, please contact me.  

Chair, Division 1 (Litigation & Dispute Resolution)
401-490-3418 (d)
rtdunn@PierceAtwood.com