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.
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: email@example.com | https://www.linkedin.com/in/lexie-pereira/