February was an great month for Division 1. The Forum had its first ever virtual construction conference co-chaired by our own Cassidy Rosenthal. Congrats Cassidy on job well done. I found the conference platform pretty user friendly and dynamic. I liked the ability of attendees to submit questions and comments during the program. I also thought the networking features were pretty cool too. It was great seeing a lot of our Forum friends during the conference. Going forward, I am pretty sure we will incorporate a virtual component to our programs as it allows access to those who would rather not travel.
Division 1 had two division events during the virtual conference.
First, we had our Toolbox Talk Series about working with experts in mediation. Patricia Thompson, David Ponte, and Dan Becker did a great job leading the discussion of our 40+ attendees. Some of the takeaways / considerations form the talk for me included:
Providing expert reports or presentations early enough so that the other side can review and process the information.
Be cognizant of the confidentiality of the expert reports for mediation and take measures to avoid those reports being used later in the case by your adversary.
For some disputes, particularly if the project is still ongoing, consider hiring one shared expert to help your client and the other side resolve their dispute. Dan Becker described how he did this on one project.
Sometimes it is appropriate to have the experts meet together and/or with the mediator to narrow issues.
Second, we had our escape room event in partnership with Division 7 and Division 9 on February 25th at 3PM. The event of 30+ attendees started out with 30 minutes of networking. Michael Martin from LitCon Group, the sponsor of our event, introduced himself and his company's expertise. Each of the division chairs introduced themselves and their divisions. Then, each attendee introduced themselves. We then broke up into groups of 4-5 people to perform the virtual escape room game. I was randomly paired upon with Division 7 Chair (Mike Clark) and Division 9 Chair (Jeremy Brummond) and two others. We finished the game 15+ minutes early and won! Everyone was screaming at us when we all got back together that the company had to mute us all to close out the program. It was a blast!
In March, Division 1 has four virtual events planned.
1. March 8 @ 3PM ET - Monthly Meeting.
Our monthly meetings are always on the second Monday of the month at 3PM. We discuss future programs and meetings. This is a good way to get involved with Division 1. Please join us
4. March 31 @ 3PM - Return on Investment of Construction Claims
Our D1 Friends from DPA and Brenda Radmacher will lead a discussion about how attorneys can more clearly answer the age-old question favored by clients - what is this going to cost me and is the return worth the fight? There is no cost to attend and it is open to all interested in the topic.
We also have some interesting programs in the works for the coming months. Thank you to everyone for a engaging with the Forum and Division 1 in February.
If you have ideas, questions, or want to learn more about Division 1 or the Forum, please reach out.
A recent five-year, ten-state study proved that effectively managed arbitrations save time and money in comparison to litigation. This study found that federal court lawsuits lasted over a year longer than arbitrations decided during the same period, which delay caused direct business losses exceeding $10 billion, in part due to lost management time, the effect of prolonged litigation uncertainty on management decision-making, credit and investor concerns, and lost use of resources tied up by litigation. Delayed dispute resolution is simply bad for business.
Therefore, parties wisely draft their arbitration agreements to limit discovery and motion practice, and, equally important, they carefully select arbitrators trained to run efficient proceedings.
But more forethought is necessary for arbitration to live up to the cost savings it was intended to achieve. Too often, arbitration is delayed – sometimes for years – pending judicial resolution of allegedly ambiguous arbitration provisions. Drafters of arbitration agreements should consider the following to avoid, or at least limit, expensive side litigation.
1. Clearly define the scope of the arbitration agreement.
To avoid litigation, the arbitration agreement should make clear:
a)That its scope applies to all disputes or controversies arising out of or related to the relationship of the parties or the transaction at issue, including statutory, tort, equitable, common law or contract-based claims, including those arising before as well as after the arbitration agreement;
b)That objections to the scope and validity of the arbitration agreement and the underlying contract must be arbitrated; and
c)Whether it binds entities related to the contracting parties, whether it requires consolidation of all related disputes to avoid multiple, parallel proceedings, and whether it precludes class actions.
2. Define the arbitrator’s authority.
The arbitration agreement should leave no question as to the arbitrator’s authority. It should:
a)Give the arbitrator sole authority to determine whether the parties have satisfied conditions to arbitration, as well as the enforceability of the underlying contract(s) and arbitration agreement, and the scope of the arbitration agreement; and
b)Clarify that the arbitrator has broad authority to award damages, injunctive and other equitable remedies, and assess fees, costs and sanctions.
3.Draft a fundamentally fair agreement.
One-sided or unconscionable arbitration agreements invite litigation. Organizations like JAMS and AAA are good resources for provisions that are clearly worded, fairly drafted, and commercially reasonable.
4.Avoid inconsistent contract terms.
Litigation results when language in boiler plate arbitration agreements conflicts with other standard provisions in the underlying or related contract documents. Commonly inconsistent provisions concern:
a) Choice of law and availability of remedies;
b) Inapplicable references to courts and judicial venues for dispute resolution; and
c) Confusion as to selection or number of arbitrators or arbitral rules.
In summary, a well drafted arbitration agreement should foster the cost-effective resolution of disputes, using language that is consciously crafted to avoid rather than result in litigation.
Author Patricia H. Thompson, Esq., FCIArb, is a full-time neutral at JAMS, with experience conducting virtual and in-person mediations, arbitrations and other ADR proceedings in construction and other complex commercial disputes.
Meet Melissa Dewey Brumback! She is an experienced arbitrator, with over 22 years of practice, based
in North Carolina. Although she grew up
in New York state, she is now a double Tar Heel, having obtained both her
undergraduate and her law degree from UNC-Chapel Hill.In her practice, Melissa works with
construction industry professionals of all stripes—architects,
engineers, contractors, and developers. However, she considers design professionals among her favorite parties to represent, and has a blog devoted to their particular legal
issues: Construction Law
in NC.We sat down (virtually, of
course!) with her and learned about her arbitrating style. She also shared some practical tips for her fellow ‘dispute resolvers.’ D1, meet Melissa!
When and why did you choose to become an arbitrator?
Becoming an arbitrator chose me, actually. I was asked to arbitrate a dispute involving
a construction business dispute by some parties that had agreed to a private
arbitration. It was rewarding being the
decision maker for a change—and it got me hooked.
Can you describe your arbitrating style?
As I am usually an advocate, I know what frustrates
folks, and that is an arbitrator that is unfair—that is, when an arbitrator has a
bias or has pre-determined which side is more trustworthy.I strive to stay as open-minded and neutral
as possible until all the evidence is in the record.
What is the most important skill to have as an arbitrator?
Willingness to make tough calls.I had one case where a party didn’t produce
documents ahead of time, despite discovery obligations, but wanted to use those
same documents in the hearing.You need
to force parties to keep to the rules they agreed to at the start.
What should drafters consider when drafting an effective arbitration clause?
The most important consideration for arbitration is
how much discovery to allow.If you
allow full discovery, there is little point to having an arbitration.On the other hand, you want to be able to
know the general facts before you get to the hearing.Carefully crafting those discovery
limitations is vital.
What measures do you take as an arbitrator to ensure arbitration is less costly and more efficient than litigation?
One of the benefits of arbitration is the speed and
lower cost.I don’t believe that strict
rules of evidence are necessary in the arbitration setting.Forcing attorneys to follow strict document
admission requirements, for example, is generally unnecessary.
GET TO KNOW MELISSA & HEAR HER TIPS FOR FELLOW DISPUTE RESOLVERS
What geographic area will you serve as a mediator/arbitrator?
Generally I will arbitrate anywhere North
Carolina—from “Manteo to Murphy” as they say.If you are in the Tar Heel state, I’ll be there.(I’m not opposed to arbitrating in neighboring
states, but haven’t had the opportunity.)
What is your experience and thoughts regarding virtual ADR?
I have not yet participated in a virtual arbitration,
although I have participated in numerous virtual mediations and hearings, and I
imagine it is similar. I think it is a
good tool to consider when folks are far away so that you can have testimony
without breaking the bank.
How can ‘dispute resolvers’ better resolve disputes?
The most important way for 'dispute resolvers' to
better resolve disputes is to be open to new ideas, new methods, and new
theories.Every other lawyer you meet
can teach you something—either how to do something or how not to do something.Don’t
just do the “same old, same old” when handling a dispute, but carefully craft
the theory and method for the particular case.
How does the Forum and Division 1 relate to your mediation and arbitration practices?
The Forum is both fun and rewarding. I know lawyers from across the country that I
can call with questions or send clients to when necessary. I learn a lot of hands-on, topical
information from being an active part of the Forum. I like
to say it is a cult—but a good cult!
What was your first Forum meeting?
My first Forum meeting was the Scottsdale, Arizona and was called “My Favorite Mistakes.” The brochure pictured a guy wide awake and stressing about his case at 3am. I could relate, so I had to go!
What hobbies, activities, or interests do you have/do outside of work and the Forum?
I love to read and all things books. I am in a few different book clubs, enjoy
finding little free libraries, and my idea of a great afternoon is one spent in
a used book store. Pre-COVID, I also
loved to travel with my family, and hope to get back to that as soon as the
world returns to normal. (Iceland is
next on my bucket list!)
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!).
Melissa Dewey Brumback is a litigation partner with over 20 years of experience, whose practice is focused on construction law and business disputes. She primarily represents architects and engineers, advising them on contract proposals to limit risks and defending them when litigation does arise.
Melissa’s cases have included construction administration and management claims, plan defect claims, testing failure claims and delay claims. Her practice includes the defense of all sizes of claims, from private commercial buildings to large, multi-million dollar public projects. She defends clients in State and Federal courts as well as in binding arbitration.
In addition to construction cases, Melissa handles commercial litigation, business torts, contract negotiation, medical negligence claims, product defect liability, premises liability, title insurance litigation, and director and officer liability.
Since 2009, Melissa has written and edited Construction Law in North Carolina, which is dedicated exclusively to the design professional community. The blog is critically-acclaimed at the national level, and has been awarded the “Best Construction Blog” prize by Design and Construction Report.
Outside of work, Melissa can be found with her nose buried in a good book or checking out the newest restaurants in the Triangle with her husband and daughter.
_____________________________________________________________ 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 2020 Student Liaison of the ABA's Forum on Construction Law. At school, Lexie is the President of the Real Estate Law Society and the President of the Eagle-to-Eagle Mentoring Program. Lexie grew up in the construction industry and has spent time working as an estimator, field engineer, laborer, and, of course, in the legal capacity at Consigli and formerly Hinckley Allen as a Summer Associate. Contact Lexie: pereirle@bc.edu | https://www.linkedin.com/in/lexie-pereira/
