Office Location: Los
Angeles, CA
Email: kgibbs@jamsadr.com
Website: https://www.jamsadr.com/gibbs/
Law School: UCLA (JD - 1974)
Types of ADR services offered:
Mediation and Neutral Evaluation
Geographic area served: USA
Q: Describe the path you took to becoming an ADR neutral.
A: I was the lead/name partner in a law firm specializing in representing clients in construction and engineering matters. After 25 years of doing this, I segued to working as a neutral on construction/engineering disputes.
Q: Describe your background and experience with construction ADR.
A: I have mediated more than 2,500 cases and arbitrated over 200 cases in 25 states over the course of my career. I feel honored to have been designated with the highest-level ranking (Band 1) in construction mediation by Chambers USA every year since the inception of the publication in 2005.
Q: Mediators are oftentimes described as “facilitative,” “evaluative,” or “transformative.” What is your style?
A: Evaluative.
Q: What should attorneys and their clients take into consideration when selecting a mediator?
A: Subject matter experience.
Q: What are your thoughts on requiring mediation as a contractual prerequisite to litigation or arbitration?
A: This is a bad idea. Mediation should be consensual after a dispute has arisen. Not just a “check the box” process.
Q: What can attorneys do to best position their clients for a successful mediation outcome?
A: Give them an honest “best case, worst case, and most likely case” opinion before the mediation.
Q: How can neutral evaluation be used in the context of the mediation process?
A: It can be used either before mediation takes place or when the parties are at impasse. Most often, I use it at the outset before "formal" mediation takes place—it gives the parties some "context" in which to conduct the mediation. Obviously, it is a consensual process and there are many variations as to how the neutral evaluation will be conducted.
Q: Are there particular types of matters that lend themselves to the “mediation-evaluation” process described above?
A: It is a good tool to use where public entities or insurance carriers (often professional liability carriers) are involved. I make my non-binding rulings in writing and for a public entity it provides a quasi-judicial ruling which can be used as justification to resolve a matter. For insurance carriers it gives them additional reasoning by a neutral for internal risk analysis purposes.
Q: What are the pros and cons of employing this sort of process?
A: The pros are as stated above—a non-binding, quasi-judicial ruling. The cons are cost and time.
Q: What sort of construction disputes lend themselves well to neutral evaluation (either in conjunction with mediation or separately)?
A: Because of the cost and time involved to conduct a neutral evaluation it is best reserved for "high-value" disputes. Construction/Engineering disputes involving public entities lend themselves well to the process. I have used it many times on Design-Build disputes where standard of care issues are present.
Editor Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law for over a decade. Marissa is a partner at Laurie & Brennan, LLP and represents owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. Marissa can be contacted at mdowns@lauriebrennan.com.
