FeaturedPanelists

Q:Describe the path you took to becoming an ADR neutral.

A: I was an advocate in several large domestic and international arbitrations. I was encouraged by an AAA Administrator (Cathy Shanks) to apply for the AAA panel, which I did. After that, I was a regular panelist, as well as a presenter at AAA and ICDR events. I was invited to join the ICDR panel, and more recently the Mega Projects Panel.

Q: What percentage of your current legal practice is spent on ADR work?

A: Approximately 30%. I typically handle 3-4 cases per year as a neutral. When not serving as a neutral, I serve as an advocate in construction disputes.

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

A: I prefer an evaluative mediator for most of my cases – someone who will identify and convey the strengths and weaknesses of the case in a candid way.

Q: What are your thoughts on requiring mediation as a contractual prerequisite to litigation or arbitration?

A: I do not believe it should be a firm requirement (because mediation can only be successful if both parties are onboard and engaged), but it should be encouraged in most cases.

Q: When do you recommend parties in a dispute attempt mediation?

A: There are often various “windows of opportunity” for settlement including (i) before suit/arbitration is filed; (ii) before significant discovery takes place; (iii) after discovery takes place; (iv) before the start of hearings.

Q: Do you recommend individual preparatory meetings with the parties and counsel prior to the joint session, and why or why not?

A: I prefer preparatory meetings because they avoid having to spend time educating the mediator during the joint session. Also, the parties can have candid discussions with the mediator outside the joint session. Finally, it gives the client an opportunity to “vent” outside of the joint session where such venting may have a negative result.

Q: What can attorneys do to best position their clients for a successful mediation outcome?

A: Attorneys should be candid in their assessment of the case and likely outcomes if settlement is not achieved. Attorneys should also educate their clients about the process; and make clear that emotional outbursts or other overt emotional responses can have a negative influence. They should emphasize that the parties should approach the process with an open/receptive mind.

Q: What experience do you have arbitrating construction cases?

A: I have been arbitrating construction cases as an advocate both domestically and internationally since 1999. I have served as an arbitrator at least 15 times since joining the AAA/ICDR panels roughly 10 year ago. My cases have been a mix of domestic and international. I tend to get picked for larger cases, often out of my immediate geographic area. I have served as both a solo arbitrator and as a member of a three-arbitrator panel.

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

A: Whether to choose a single arbitrator or a 3-member panel will typically depend on the size and complexity of a matter. Smaller, less complex matters should not require a 3-member panel. When there is a single arbitrator, parties will often pick a lawyer to serve, as opposed to a non-lawyer industry professional.

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

A: From the first procedural conference, I encourage parties to look for (and agree upon) ways to make the process speedy and efficiently. Consistent with the AAA Discovery Guidance, I encourage the parties to be judicious with discovery and to keep it proportionate to the size and complexity of the case. I generally discourage “court-style” discovery that is inconsistent with the objectives of efficiency. I also like to set time limits on the hearings, and strongly encourage the use of a chess clock to ensure that the hearings are completed within the time allotted.

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

A: Absolutely – consistent with the AAA Discovery Guidance and the goals of arbitration.

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

A: Unless the parties agree to apply the traditional rules of evidence, I typically will not apply them – with exceptions for “privilege” and similar issues. The arbitrator generally does not need to serve as a “gate keeper” for the evidence, as is necessary in traditional litigation.

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

A: I like to use all available technology – including trial presentation software; electronic evidence (in lieu of paper) to the extent possible; real-time court reporting; etc.

Q: What are some of your interests or hobbies outside of your ADR Neutral practice?

A: Skiing, Waterskiing, Golf, and Boating.

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.

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