Dispositive Motions in AAA Construction Arbitration: Why You Should Think Twice

When involved in a construction arbitration under the AAA rules, the urge to file a dispositive motion can be strong. After all, wouldn't it be beneficial to eliminate your opponent's case early and save the time and expense of a full hearing? However, before drafting that motion to dismiss or motion for summary judgment, take a moment to consider if it's truly the best strategic choice.

The AAA's Measured Approach to Dispositive Motions

The AAA Construction Industry Arbitration Rules adopt a notably cautious stance toward dispositive motions. Rule R-34 states that arbitrators may allow such motions "upon prior written application," but only after evaluating "the time and cost associated with the briefing of a dispositive motion." The rule explicitly mandates that arbitrators consider whether permitting the motion aligns with "the goal of achieving an efficient and economical resolution of the dispute."

This language isn't accidental as it reflects the AAA's recognition that dispositive motions often do more harm than good in the arbitration context. Unlike federal courts, where summary judgment motions are common, arbitration's informality and focus on efficiency influence how they are handled.  The rule’s design makes dispositive motions the exception rather than the rule.

The Two-Step Hurdle: Permission First, Then Success

Here's what many attorneys miss: filing a dispositive motion in AAA construction arbitration is actually a two-step process. First, you must get the arbitrator's permission to file the motion. Second, if granted leave, you must actually win on the merits. This creates a double hurdle that significantly reduces your chances of success.

Step 1: Getting Permission

The arbitrator will assess whether your proposed motion promotes efficiency and cost-effectiveness. Since construction disputes often involve complex facts, site conditions, performance standards, and technical specifications, arbitrators are usually doubtful that legal motions alone can resolve disputes without a hearing.

Step 2: Winning the Motion

Even if you obtain permission to file, remember that arbitrators are instructed to resolve disputes based on the evidence presented. Most construction disputes involve mixed questions of law and fact that are difficult to settle decisively.

Know Your Arbitrator: Background Matters

The success of any dispositive motion strategy heavily depends on understanding your arbitrator's professional background and approach. AAA construction arbitrators typically fall into several categories:

• Former judges and retired judges: Judges may be more open to dispositive motions because they have dealt with them regularly during their judicial careers. However, they also recognize that construction cases rarely lend themselves to quick resolution based solely on legal arguments.
• Construction industry veterans:  Engineers, architects, project managers, and construction executives who serve as arbitrators often prefer to "get into the weeds" of technical issues. They may see dispositive motions as an attempt to sidestep the substantive construction issues they are specially qualified to assess.
• Construction Lawyers: Attorney-Arbitrators with construction backgrounds understand both the legal framework and the practical realities of construction projects. They may be more open to considering dispositive motions but will carefully scrutinize them for their potential to resolve the dispute.

The Practical Problem: Most construction arbitrators became arbitrators precisely because they want to resolve disputes on their merits, not on procedural technicalities. Filing a dispositive motion may suggest to the arbitrator that you're attempting to avoid the substantive issues—the very issues the arbitrator was selected to decide.

The Limited Scope for Success

Dispositive motions are most effective when they tackle pure legal questions that don't require factual development. In construction arbitration, such cases are uncommon.

Where Dispositive Motions Might Work:

• Clear contractual time bars or notice requirements
• Unambiguous limitation of liability clauses
• Statute of limitations defenses with undisputed facts
• Jurisdictional challenges to the arbitrator's authority

Where They're Likely to Fail:

• Disputes over the scope of work or changed conditions
• Performance and quality issues
• Delays and disruption claims
• Most breach of contract allegations
• Professional negligence claims

The reality is that most construction disputes involve site-specific conditions, complex sequencing issues, and performance standards that require factual development. These cases don't lend themselves to early legal resolution.

The Cost-Benefit Analysis: A Cautionary Tale

Dispositive motions in arbitration are expensive gambles with poor odds. Consider the costs:

• Time Investment: Researching, drafting, and briefing a dispositive motion demands significant attorney time. Your client will pay for this regardless of whether the motion succeeds or fails.
• Arbitrator Fees: Under Rule R-49(c), arbitrator fees and expenses "associated with a motion or an application to make a motion may be assessed" against the losing party. If your motion fails, you could be responsible for paying not only your own fees but also the arbitrator's costs for reviewing and deciding your motion.
• Delayed Resolution: Even a successful motion may only narrow the issues, not resolve the entire case. The time spent on motion practice could have been used moving toward a hearing date.
• Relationship with Arbitrator: A poorly conceived motion may damage your credibility with the arbitrator. Remember, you'll be appearing before this same arbitrator throughout the proceedings.

The Strategic Alternative: Focus on Case Management

Instead of filing dispositive motions, consider these more effective strategies:

1. Narrow the Issues: Collaborate with opposing counsel and the arbitrator during preliminary hearings to identify and limit the actual disputes.
2. Streamline Discovery: Use Rule R-24's information exchange procedures to build your case efficiently without heavy discovery disputes.
3. Leverage Technical Expertise: Focus on developing expert testimony and technical evidence that appeals to the arbitrator's construction background.
4. Conclusion: Choose Your Battles Wisely

The AAA Construction Rules' cautious stance on dispositive motions reflects decades of experience with what works and what doesn't in construction arbitration. While the appeal of an early knockout move is understandable, the reality is that these motions usually consume resources without providing proportional benefits.

Before filing that dispositive motion, ask yourself:

• Is this genuinely a straightforward question of law that can be settled without factual development?
• Will this motion truly benefit my client's interests, or am I merely trying to follow the familiar patterns of federal court practice?
• And most importantly: Would my client's money be better spent preparing for a merits hearing where we have a real chance to win on the substance of our case?

Construction arbitration works best when it concentrates on its strengths: providing efficient, expert-driven resolution of complex technical disputes. Arguing over legal technicalities often detracts from that goal. Choose your battles wisely and save your resources for the issues that truly matter.

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Author Lisa Colon is a partner at Saul Ewing LLP with over 25 years of construction law experience representing developers, contractors, and subcontractors. As both an arbitrator and certified mediator, Lisa brings a unique perspective from both sides of the table in construction ADR proceedings. She regularly serves on AAA construction arbitration panels. Licensed in Florida and New York, Lisa focuses her practice on complex construction disputes, contract matters, and alternative dispute resolution. She can be reached at lisa.colon@saul.com.