Meet D1's Neutrals Series: PATRICIA H. THOMPSON

Company: JAMS

Office Location: Miami, Florida

Email: pthompson@jamsadr.com

Website: https://www.jamsadr.com

Law School: Vanderbilt University School of Law, JD, 1976

Types of ADR services offered: Arbitration, Mediation, Neutral Evaluation, Project Neutral, Neutral Appraiser, Special Master for Discovery

Areas served: US and International 

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Q: What did you do prior to your work as a neutral?

A: Trial and appellate work in construction, commercial insurance, employment, and commercial/banking law.

Q: What experience do you have arbitrating construction cases?

A: I had over 40 years of experience as a practicing attorney negotiating, litigating, and arbitrating construction and commercial disputes of all kinds. Since joining JAMS in January 2017, I have served as a mediator, single arbitrator, and panel member or chair, in numerous U.S. and international construction disputes.

Q: What should attorneys and their clients take into consideration when vetting or selecting an arbitrator?

A: The arbitrator’s experience in construction law and the types of project or construction methods at issue in the dispute; whether the arbitrator will enforce the rules and the meet the parties’ expectations in managing a cost effective and efficient proceeding; and the arbitrator’s reputation among the construction and arbitration community.

Q: What advice do you have for parties when considering whether to choose a single arbitrator or a panel?

A: A single skilled arbitrator can usually get a matter resolved just as fairly as a panel but more quickly and less expensively. If the parties want the assurance of another set of eyes, they can reserve the right to have a private arbitration appellate panel review the single arbitrator’s award, without sacrificing undue delay or cost. However, if the issues and the amount in controversy justify a panel, then it is important to select an experienced panel of neutrals who respect each other. Then they are more likely to collaborate on an award that is the result of their collective wisdom. Selecting a panel that does not mesh – for whatever reason – may foster intra-panel disagreements. In which case, it is very possible the award will be the result of “tiebreaking” decisions by the chair and the parties will not realize the full value of the cost of three arbitrators.

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

A: I limit motion practice significantly, but, when justified, I will grant dispositive relief if it eliminates or reduces the time and expense necessary to resolve the issues remaining in the case. I also limit pre-hearing briefing unless it is needed. I limit discovery to that justified by the nature of the dispute and the reasonable need for the information sought. I encourage bifurcated hearings, giving priority to proving those issues that may eliminate the need for later hearing(s). I strongly encourage and reward collaboration and cooperation among counsel for the parties.

Q: Is there anything the parties can do to control costs incurred by their arbitration panel?

A: In a three-arbitrator panel, I encourage the parties to vest the pre-hearing authority in the chair, so most of the cost of the other arbitrators is not triggered until the actual evidentiary hearing. The cost of arbitrator travel may be reduced by virtual evidentiary hearings and having virtual post hearing arbitrator conferences when drafting awards.

Q: Do you think limits should be placed on discovery in the arbitration context?

A: Absolutely, and when parties chose to follow the rules of a given arbitration organization, they are giving consent to such limits.

Q: What role should traditional rules of evidence play in the arbitration hearing?

A: Rules of privilege must be respected; otherwise, the traditional rules of evidence should be used to inform an arbitrator as to the weight to give to the evidence that the arbitrator finds to be admissible, because it is relevant, material, and trustworthy.

Q: In what way do you use technology in the arbitration process?

A: Every way the parties and I can find ways to use it, depending on the nature of the case and the evidence to be offered. At the very least, it should be used to save money, accommodate witnesses, and manipulate and view exhibits.

Q: What role do you think videoconferencing will play in the arbitration landscape post-pandemic?

A: Videoconferencing will continue to allow for preliminary hearings on short notice without need for travel and enable parties and witnesses to attend hearings virtually. It should allow the evidence, especially expert testimony, to be sequenced to allow the parties to more logically present the issues. And it should facilitate bifurcation of hearings.