ADR, Pandemic and ...Robots?

A few years ago I had the chance to read a book titled “The Robots are Coming!: The Future of Jobs in the Age of Automatization”, written by Andrés Oppenheimer. In this book, Mr. Oppenheimer stated what the future of several jobs and professions would look like due to the automatization of several activities.

Through the book, the reader learns that a lot of jobs are being supplemented or replaced by robots and technology. Current examples are: self-checkout cashiers in the supermarket; ordering restaurant food through electronic apps; and translators, because translation apps are getting more precise and specialized day by day.

The examples mentioned above do not seem all that new. Actually, since the pandemic and restaurants being closed or operating in a limited capacity, it has become the most common method for us, for example, to order food electronically if we do not want to go out.

The surprise in the book came when I got to the chapter on the future of lawyers.

Yes. Lawyers may be replaced little by little by robots. Several examples of how this is happening currently are well detailed in the book. However, even though the book suggests that some activities performed by lawyers that require expertise and high technical knowledge are going to be supplemented in the near future, I believe that the future may be here already.

If we pay attention to the way we transitioned our daily activities as a result of the pandemic to the way we do them now, we realize that such transition was almost automatic.

Almost every hearing was moved from physical attendance to remote. Arbitrator, expert, and witness visits to construction sites are changing from physical to remote as well, using drones and BIM modeling technology, and we can follow the project with that tool in real time.

Witness hearings are being conducted by Zoom, Teams, or similar software.

Due to the pandemic this new reality came much faster than we believed before and this situation has made necessary that lawyers advise their clients to transition from common court litigation to methods of Alternative Dispute Resolution that could provide easier, faster, cheaper and most of all, safer and possibly more secure ways to resolve disputes.

In that regard, it is worth mentioning that there are a lot of International Institutes that address this current demand like the International Chamber of Commerce, which in its Rules for Arbitration proposes that communications be exchanged via email (Article 3 of the ICC Arbitration Rules), and also suggests that the case management conference be held remotely (Article 24 of the ICC Arbitration Rules).

Locally for me in Mexico, the CAIC (Centro de Arbitraje de la Industria de la Construcción – Arbitration Centre of the Construction Industry) also suggests that communication be by any technological means.

As the world and our reality moves forward, we as lawyers should adapt accordingly. A good start would be advising our clients to use the ADR Institutions, whether international (like the ICC) or domestic (like the CAIC), that offer a service that fits the current reality, until robots come to resolve the disputes themselves.

Author Juan Pablo Sandoval García is an Associate at COMAD, S.C. (www.comad.com.mx). His email address is jpsandoval@comad.com.mx.

How Great Leaders Build Trust to Level Disputes

If you are reading this article, the chances are high that you have more than a passing interest in dispute avoidance, mitigation, and resolution particularly as it relates to the construction industry. While there are many technical, operational, and legal processes and best-practices that aim to assist contractors and owners in reducing the likelihood of a dispute or to mitigate the overall risk associated with a dispute, a topic that is less frequently discussed in relation to dispute avoidance, though no less important - is that of leadership.

As an MBA alumnus, I have the privilege to stay involved with the business school by serving as a leadership coach for current students. This involves facilitating groups of students as they work through simulations designed to replicate real-world dilemmas. The purpose of these simulations is to teach students to navigate the challenges associated with leading groups, make timely decisions based on incomplete data, and balance individual motivations with team objectives.

If you read the previous sentence and immediately thought, “That sounds like what I deal with every day” -- you are not alone!

Construction’s Unique Challenges

Construction leaders, both in the office and in the field, face a unique set of challenges when compared to other industries. A prime example is the sheer number of stakeholders involved in a construction project – ranging from those funding the project to the sub-tier contractors physically putting steel and pipe in place.

Each stakeholder has their own set of interests, stressors, and goals. While the developer of the project site may be focused on the timing of completion, the lease-up of the facility, and the status of their relationship with city officials, the surety may be primarily concerned with the performance and financial health of the contractor.

As if that were not complex enough, it is also true that even within the same company different individuals can have personal goals that do not necessarily align. Consider the electrical subcontractor’s Project Manager whose immediate career trajectory may be determined by the financial success her company has on the project. This can be contrasted with the Project Executive who is entirely focused on the relationship with the general contractor to increase the chances of landing a future project.

The situation is further complicated by the fact that construction project teams are rarely repeated from one project to the next.

This means that not only do the collaborators involved in a construction project have individual goals that may or may not be aligned with one another, but many of the team members have never worked together in the past! These factors, coupled with the capital-intensive (i.e. expensive) nature of construction are a combination which, if not managed properly, can lead to disastrous results - as evidenced by the billions of dollars of construction currently in some form of dispute resolution.

So, the question becomes:

How can construction project teams appropriately balance individual objectives with overall project goals in order to create a shared future that considers all stakeholder interests and produces innovative solutions? Oh – and that all needs to be done quickly because according to the schedule you are already behind!

The Missing Piece

As many of the MBA teams discover in the simulations, there is a common theme that emerges which explains many of the pain points and failures experienced by both the MBA and construction teams…

Trust.

Or rather, a lack of trust.

Tell me if this sounds familiar to you,

“I felt like our discussions were guarded and we were all holding something back.”

This is a quote from a current MBA student during a recent simulation. This reflection hits the nail on the head. It reminded me immediately of countless OAC (Owner-Architect-Contractor) and subcontractor meetings that I have attended in the past.

In his book, The Five Dysfunctions of a Team, Patrick Lencioni astutely places the “Absence of Trust” at the base of his pyramidal model for the common pitfalls individuals and organizations fall into – which lead inevitably to a lack of effective teamwork.

As can be seen in Lencioni’s model, the absence of trust on a team is directly linked to several other ‘dysfunctions’ that hinder project success – fear of conflict, lack of true commitment, etc.

So, what exactly is an “Absence of Trust”?

Put simply, it means that the individuals comprising the team are not comfortable being their true authentic selves and are unwilling or unable to be vulnerable to each other. Team members who are not open with one another about their own mistakes and shortcomings make it impossible to build a foundation for trust.

As Lencioni puts it in his book,

"As 'soft' as all of this might sound, it is only when team members are truly comfortable being exposed to one another that they begin to act without concern for protecting themselves. As a result, they can focus their energy and attention completely on the job at hand, rather than on being strategically disingenuous or political with one another."

From a dispute avoidance perspective, the above quote is particularly relevant and is critically important to understand. This is because while the vast majority of contractors and owners naturally desire to avoid damaging relationships with clients and/or costly litigation, an extreme focus on protecting only oneself and keeping project team members at arms reach in an attempt to stem off a potential dispute never allows the project team to become “High Performing”. Ironically, this less-productive, low-performing team that hasn’t cultivated the foundation of Trust necessary to effectively communicate issues within the pressurized environment of a construction project is actually more likely to find themselves heading into a dispute!

This is not to say that the members of the project team should abandon the processes, procedures, and best practices developed to protect themselves in the event of a dispute. Simply that a focused effort must be made by the project executives, managers, and field supervision to ensure that while following these procedural best-practices, authentic relationships built upon mutual trust, are still fostered among all project stakeholders.

How to Identify if Trust is Lacking

Below are a few additional red-flags that may indicate the level of trust within your team is lacking.

1. Communication is “guarded”: Team member’s true motivations or intentions are not openly discussed - which can result in other stakeholders making inaccurate assumptions or even projecting their own motivations;

2. No safe space for conflict: Team members do not feel comfortable disagreeing with one another. This leads to false consensus - team members not truly buying in to the plan even though they “agreed” to it;

3. Hesitate to offer help outside their own areas of responsibility; and

4. Dread meetings and find reasons to avoid spending time together.

Teams with a lack of trust tend to spend far too much time managing the way they interact within the group rather than focusing on the overall objectives of the team.

If a lack of trust is evident within your project team, the logical next question is: How do we create trust?

Creating Trust

One of the key lessons for any leader to know about building trust is that as leaders, it is our job to cultivate an environment in which trust can flourish. This means creating an atmosphere in which our team members feel safe to give their true, unedited thoughts and opinions. Often, this means being the first person to show vulnerability – speaking up when you need help, openly discussing your motivations, giving the other people on the team a glimpse at the real you and putting aside your own need to be invulnerable in the eyes of your team mates.

This may seem counter-intuitive when considered through the lens of dispute avoidance, mitigation, and resolution. Indeed, the ability to balance the necessary legal and procedural best practices to protect one’s own interests while simultaneously building authentic, trust driven, relationships with other project stakeholders is one of the most difficult to finesse. Mastery of this skillset separates the good leaders in construction from the very best.

Unfortunately, as we all know, trust is not built overnight. In the construction industry, project teams are rarely the same from one project to the next and with today’s aggressive construction schedules, there is no time designated for “building trust” – despite its criticality. This is one reason it is so crucial for construction teams to utilize the most effective and proven methods available for building highly performing teams and to make conscious efforts to foster trust within the project team from day one.

A version of this article was originally published on LinkedIn.

Chase Callaway is a licensed Professional Engineer and globally certified Project Management Professional with David Pattillo & Associates, a Socotec Company. He has a decade of experience in the construction industry providing project management and consulting services to owners, contractors, architects, and engineers. Chase has worked on Domestic and International dispute engagements related to the construction of power generation facilities, mining operations, oil and gas operations, manufacturing plants, and government facilities. He also has extensive experience in the construction of commercial, industrial, educational, and medical facilities. Chase obtained a B.S. in Mechanical Engineering from the Georgia Institute of Technology and his M.B.A. from Emory University’s Goizueta Business School with concentrations in both Strategy and Leadership. While at Goizueta, Chase was honored to serve as President of the Evening MBA program during his final year and was elected by his peers to receive the Core Value Award for Community. 

What's Up at Division 1 (No. 5)

D1 Members . . . October was a BUSY month for us.  Here is a summary of some of what we all did. 

Division 1 Virtual Planning Retreat

On October 13th, we held a virtual planning retreat from 3-5PM.  We had a good representation of our steering committee members, liaisons, and excellent volunteers on the zoom meeting.  We focused on four topics:

1. Member Recruitment & Engagement 
2. Division 1 Program / Publications Concepts (particularly virtual programs)
3. The Dispute Resolver Blog 
4. Upcoming Forum Meetings 

Member Recruitment and Engagement. Division 1 is an inclusive and ambitious group.  While we have a strong membership, we are always looking for new construction lawyers to bring into Division 1.  During the planning retreat, we discussed how we can increase transparency regarding ways and levels to get involved.  We also discussed our outreach efforts including sending D1 branded desk crumbees to our active members as a thank you.  We discussed reaching out to the Young Lawyers Division and work on programs with the Diversity and Inclusion Committees to expand our membership and give speaking/writing opportunities to our members.   Here are a few concrete example of what we have done along these lines:

We (Katie Kohm) put together the above video explaining how to get involved in Division 1.  The video has great information including the contact information for each of D1's steering committee members.  

We continue to send out our D1 Desk Crumbees.  Here is a photo Steering Committee Member, Rob Ruesch, sent to me with his desk crumbee.  

Division 1 will support the Forum's guide program -- a mentorship-style program without the mentor word.  This initiative will pair up active Forum members with Forum members who are looking to get more out of their Forum membership.  For those interested in serving as a guide, there is a call scheduled for tomorrow (11/10). Please reach out to me if you are interested.  

In addition, we will promote the Forum's new supercharging your Forum membership handout that is full of information about how to get the most out of your Forum membership including speaking, writing, and leadership opportunities. 

Division 1 Program / Publications Concepts (particularly virtual programs)

While we may not be traveling in January to San Diego for the Midwinter Meeting, there are lots of ways that we can interact with our Division members.  We had a 30 minute plus brainstorming discussion about "big ideas" for virtual programing for Division 1 and the Forum generally.  This committee led by Joe Imperiale is just getting off the ground.  If you want to join this "D1 think tank" -- please email/call me!

The Building Results program on October 20th is an example of the success of virtual programs planned by Division 1.  150+ registered for the event with 80+ attending.  About half were law students and half were construction lawyers.  Most, but not all were Forum members.  The first part of the program was a excellent panel discussion.  If you missed the event, you can watch the video of it here:

The second part of the program had networking between construction attorneys and law students.  We had 10 different breakout rooms. Thanks for all of our discussion leaders for helping with this program.  Below is a screenshot from one of the breakout rooms:

The Dispute Resolver Blog & Upcoming Meetings.  We reported on the success of the Dispute Resolver over the years -- 6+ years old!  We gave credit to the excellent editorial team and discussed content that we can publish to benefit the construction law community.  We discussed upcoming meetings and the status of the same.  Keep an eye out for the Forum potentially planning a virtual construction conference next year!  D1's CLE subcommittee team has been working hard to schedule upcoming webinars through 2021. 

While I missed being with everyone at the planning retreat, I was proud of what we accomplished and the energy of our group.  I am particularly excited about a new virtual series we are starting in a few weeks -- D1 Toolbox Talk.  Jade Davis and other members of the Toolbox Talk series have planned an informal, practical virtual discussion series about ADR topics of interest.  Each program will have different discussion leaders.  Check your email inbox for news and announcements regarding the first in the series!  

 I hope you all are enjoying the fall.  It was absolutely glorious in New England this past weekend.  Above is a selfie of my with my family in Cape Cod, Massachusetts.  It was a beautiful weekend.  

As a reminder, Division 1's monthly calls are on the second Monday of each month.  Our next call is today, November 9th.  Join us for today's call or upcoming calls:

https://americanbar.zoom.us/j/6691783882?pwd=NUh3SE42eWMrc0ZrdW5pdEgyMFo0Zz09

Meeting ID: 669 178 3882

Password: 826501

Stay safe and healthy.  I look forward to working with you!

Tom Dunn

Chair, Division 1 (Litigation & Dispute Resolution)

401-490-3418 | rtdunn@PierceAtwood.com

Two Great Forum Webinars in November!

Join the ABA Forum on Construction Law presentation on "Strategies for Confronting Unconscious Bias in the Legal Industry.”

November 18, 2020 at 1:00-2:30 pm EST

1.5 CLE

Click Here to Register!

Despite our best intentions, research shows we all have it -- unconscious, unintentional bias. Unconscious attitudes and beliefs are shaped by all kinds of influences -- some of which we would not agree with or accept on a conscious level. Yet, these unconscious thoughts influence decision-making and can have a profound impact in the workplace and the practice of law -- on retention; productivity; relationships with colleagues, clients, judges, witnesses and jurors; as well as people's careers.

The American Bar Association has acknowledged the ethical implications of bias in its Model Rule 8.4(g) that addresses harassing or discriminatory lawyer misconduct. The key is to learn how to recognize our own unconscious biases as well as practical ways to interrupt those biases so we can make better decisions and serve clients more effectively. You will also learn how unconscious, unintended bias plays out in the legal profession, which is the first step toward advancing diversity in the profession.

The course will be eligible for 1.5 Elimination of Bias or Ethics Credit contingent upon the state.

Moderator:
Erik P. Raines, Hill Ward Henderson, Tampa, FL

Speaker:
Kathleen Nalty, Kathleen Nalty Consulting, Denver, CO

Next, join the ABA Forum on Construction Law for a presentation on "Access and Opportunity: Why the Construction Industry Needs Diversity to Survive and Thrive.”

November 19, 2020 at 1:00-2:00 pm EST

Free

Click Here to Register! 

Jennifer Todd, Founder & President of LMS General Contractors, joins Cathy Altman, Chair of Construction at Carrington, Coleman, Sloman & Blumenthal, LLP, for a candid conversation about the barriers to diversity and inclusion in the construction industry, the steps to create opportunity and access, and why increasing the number of minority owned construction companies and skilled workers is critical to address shortages in the industry.

Jennifer Todd is a 2020 Construction Business Owner Outstanding Women in Construction Finalist and the youngest Black woman to procure a California General Engineering (A) license. She holds a BS from Georgia State University, an MLS from ASU Sandra Day O’Connor College of Law, and a Project Management Certification from Emory University.

Mexico: Step by Step Toward a Range of ADR Options

The United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention on Mediation, entered into force a month ago. The Convention applies to agreements that result from a mediation of a commercial dispute where at least two of the parties are in different States or that the obligations resulting from the settlement are to be performed in a different State from where the settlement agreement is rendered.

According to the United Nations Treaty Collection, by October 15, 2020, there were 53 signatories, including nations like Chile, Colombia, United States of America and Uruguay; and 6 member states parties to the convention (Belarus, Ecuador, Fiji, Qatar, Saudi Arabia and Singapore). As a Mexican law practitioner, the question is: How is Mexico doing in the area of ADR?

An issue in Mexican contractual relationships, especially in the construction industry, is the way to resolve conflicts.  Regardless of the size or amount of the project, there are generally several parties that look only to their own interests and lose sight of moving the project forward.

Mexico belongs to the civil law system which means that legal relationships are ruled, most of all, from the written law, and even when arbitration has been implemented, the practice is tied to traditional litigation to solve disputes. Additionally, jurisdictional procedures are very formalistic regarding practices like the value of the evidence (most documentary evidence shall be original or certified copy), inter alia.

The use of arbitration has been increasing considerably in complex construction, infrastructure and energy sectors which brings the certainty that a professional in the field who is familiar with the day-to-day in the construction industry will resolve such a specific dispute, rather than a judge whose expertise and knowledge in law would be invaluable, but who would not be necessarily an expert in construction.

Notwithstanding the foregoing, arbitrating during the construction project does not provide a real solution because, in general, arbitration focuses on who wins and who loses, rather than the main objective of the project and its correct performance.

It is worth mentioning that it is not my intention to undermine arbitration. I am a happy practitioner and a lover of arbitration; however, to be honest, arbitration is not always the best ADR option taking into account that in the construction industry, one of the most important objectives is to continue with the projects and avoid unnecessary suspensions or delays in the project.

For those reasons it is necessary, at least in the construction industry, to implement in contractors a culture in which the contractors themselves are the ones who actively participate in the resolution of disputes arising from the contracts to which they are a party.

In that regard, once again the question that needs to be answered: How is Mexico doing in the area of ADR?

An initiative of law has been submitted in the Mexican congress. This initiative is to render an Alternative Dispute Resolution Law, which has as its purpose a social one (as communitarian or indigenous and scholar mediation) but not exactly a commercial one (for commercial mediation is proposed to amend several articles from the Commercial Code). However, if it is approved, it will be the first step to a conciliatory culture and will have a direct impact in the commercial, and of course, construction field.

It is the job of Mexico’s young practitioners to search for new areas in which to innovate, looking around at different experiences like the Peruvian where “Dispute Boards” were used in the Pan-American Games project, helping to avoid unnecessary delays and to carry on the project in a healthy manner, and to try to reach and implement advanced ADR techniques specifically in the construction industry such as the Dispute Boards, where a board of 1 or 3 people resolve in a very quick way, technical disputes, without stopping or delaying the project and eroding contractual relationships, and its resolutions are, depending on the format of the Dispute Board, enforceable.

There seems to be a long way to go, but Mexico has taken the first step by submitting the initiative of Alternative Dispute Resolution Law. I hope that Mexico will get there, step by step, to a place where a range of ADR options are available not only through legislation but also in the contracting culture.

Author Juan Pablo Sandoval García is an Associate at COMAD S.C. (www.comad.com.mx). His email address is jpsandoval@comad.com.mx.

 

Sign up for Tomorrow's Building Results Construction Law and Networking Virtual Program

Register: https://www.americanbar.org/events-cle/mtg/web/405628927/

This Division 1 Planned Program will start tomorrow (10/20) at 5PM ET with an excellent Division 1 panel discussion about the practice of construction law and ADR for law students.

The second half of the program will be networking with law students, members of the ABA Forum on Construction Law and members of the Construction Litigation Committee of the ABA Section of Litigation.

We will have two 15-minute zoom networking breakout rooms with an excellent group of discussion group leaders.  

Thanks to our panel members (shown above) and planning team members (Chris Sullivan, Lexie Pereira, Roy Wagner, and MJ Torres-Martin) for their work to put this program together.  

Register for the Forum's D&I Brunch on October 15 at 1pm ET

Free Webinar: Click Here to Register

October 15, 2020 | 1:00 - 2:00 pm ET

Join us as DeRetta Rhodes, Senior Vice President of People Capital for the Atlanta Braves, and Tom Garrett, Chief Human Resources Officer for Brasfield & Gorrie, one of the nation's largest privately held construction firms, share how their organizations seized this opportunity to transform D&I initiatives into a diverse and inclusive culture.

Meet D1's Neutrals - Andy Ness

We are excited to introduce Andrew "Andy" Ness for this month's Meet D1's Neutrals feature! Andy is an experienced arbitrator, mediator, and neutral, who joined JAMS in 2019 after 40 years of construction law practice. He graduated from Harvard Law School and was a partner in four major firms, most recently Jones Day, during the course of his career. We asked him to tell us more about his mediating/arbitrating style and to share practical tips with our fellow ‘dispute resolvers.’ D1, meet Andy!

ANDY'S MEDIATION PRACTICE

When and why did you choose to become a mediator?

In all the many mediations where I was an advocate, I watched the mediator closely. This, of course, helped me to advise my client how to proceed, but it also helped me learn what does and doesn’t work in the circumstances of a case.  I was fascinated by the complex combination of skills that were required, as well as how a good mediator could seemingly work magic to get a dispute settled.  Naturally, I started thinking about doing it myself. So, when the opportunity to join JAMS arose, I was ready.

Can you describe your mediating style?

In my observation, successful mediators all seem to have a unique personal style that fits their personalities.  My style is still somewhat evolving, but my touchstone is to stay true to myself and my personality because I know that is how I can be most effective.  So, if you happen to know me already, I expect my mediation style will seem familiar:  it’s a combination of informality, intense analytical focus on the key issues separating the parties, doggedness in pursuit of a deal, and a bit of humor here and there to keep everyone grounded.

Do you have a standard mediation practice regarding pre-mediation exchange of information/memorandum and joint sessions?  If so, what is it?

For pre-mediation, I do not have a standard practice, but I am finding the importance of pre-mediation efforts increasingly important.  Interestingly, video mediations only seem to magnify the importance of the pre-mediation sessions.  So, I stress working with the parties to assure that they arrive at the mediation prepared and ready to make a deal, with a person in attendance who is truly authorized to settle the dispute.  Each side needs to know enough about the case to be able to assess their risks realistically, which sometimes means that more information exchange in advance is needed.

As to joint sessions, I am flexible in having party presentations at the outset.  I find that it’s not unusual for the presentations to actually be counterproductive, or, at best, an unproductive use of time.  So, I do not insist on having them, unless there is reason to believe that the decision-makers will actually benefit from learning more about the dispute from the other side’s viewpoint.  I always encourage any presentations to be brief, to the point, and focused on facts, and not arguments, as those are the most effective presentations for mediations.

What is a common mistake you see parties and/or their counsel employ in mediation and what steps do you recommend to avoid it?

Parties and counsel usually say the right things – they are willing to be open-minded, serious about settlement, truly eager to hear and understand the issues with their case, and ready to work hard to achieve a resolution.  However, their actions at the mediation often demonstrate just the opposite: they want to quit after the other side’s first offer is lower than expected, seemingly having shown up just on the off chance that the other side was ready to surrender. 

D1’s ‘Dispute Resolvers’ ought to remember that successful mediation almost always requires squarely facing up to new information and input, and making hard decisions and compromises.  And while mediation moves at lightning speed compared to arbitration, it nevertheless requires considerable patience with the process.  I like to work with all parties and counsel in advance to get acknowledgement of the realistic challenges of making mediation work.

What is the most important skill to have as a mediator?

There are so many, and that is part of why mediating is a fascinating job, but, in general, the people skills are usually most important:  active listening, reading the room, having empathy, and acquiring a well-developed sense of timing in terms of when to push which button.

ANDY'S ARBITRATION PRACTICE

When and why did you choose to become an arbitrator?

After law school, I was a judicial law clerk in a US District Court.  Like every law clerk, I thought about what it would be like to be a judge.  As the years passed, I realized that rather than being a judge and hearing all sorts of cases, the opportunity to bring my depth of experience in one area – construction law – to bear in hearing and deciding construction cases was much more attractive.  Frankly, I have much more to offer the parties in a construction case, and that is key to why I enjoy arbitrating so much.

Can you describe your arbitrating style?

As when mediating, I let my personality and sense of humor show a bit, while remaining laser-focused on the important issues.  I am always looking for ways to make the process more efficient and effective.  When questions occur to me, I ask them, whether it is to make sure I understand the point or to probe more deeply into a significant issue that seemingly is being given short shrift.  But I always keep in mind that it is the attorneys’ case to try, and my role is not to interfere in their case presentation.

Also, I have one distinct preference, which is to have a real-time transcript.  Try as I might, I sometimes miss a question or two when making a note, and the real-time transcript lets me make sure I am getting all the testimony.

What is the most important skill to have as an arbitrator?

Reserving judgment until all the evidence is in.  I have appeared before too many judges during my career who seemed to have their minds made up early in trial, whether for me or against me, and vowed not to fall into that trap.  But there is skill and mental discipline involved in deferring judgment until the end, and it’s a skill you do not develop when you are in the advocacy role.

What should drafters consider when drafting an effective arbitration clause?

It never ceases to amaze me what crazy things find their way into arbitration clauses that become only needless impediments during an actual arbitration.  Just in recent months, I have encountered entirely impractical time limits (like 30 days) for the hearing and decision (as if the only disputes that will arise will be very simple, which is clearly not the norm for construction cases!), arbitrary discovery limits, and specifying that the Federal Rules of Civil Procedure (or even the Federal Rules of Evidence) must be applied.  There was even one provision precluding having an evidentiary hearing at all.

The best arbitration clauses stick to the basics and provide a broad “all disputes arising under or relating to” arbitrability clause, specification of applicable rules (the JAMS Rules are worth considering here, and offer some advantages over other alternatives) and venue, number and basic qualifications of arbitrators.  Plus, a statement that the decision will be final and binding is critical.  Since consolidation of related disputes is a frequent issue in construction cases, it also makes sense to address whether and when related cases may be heard together.  However, as you can likely glean from what I said earlier, further elaboration on allowable discovery, arbitrary time limits and the like are generally not helpful because the nature and complexity of the eventual dispute cannot realistically be foreseen when the clause is written.  It’s generally better to pick good arbitrators and let them, in conjunction with counsel, manage the case efficiently in a manner best suited to the actual dispute.

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

Emphasizing that the hearing date, once set, is not going to moved, absent really compelling reasons, and making sure that enough days are set aside to assure that the hearing can be completed without an interruption. 

I also am very comfortable with the techniques used in international arbitrations to shorten hearings, such as written fact-witness statements in lieu of direct testimony, using expert reports supplemented by presentations in lieu of direct testimony, panel testimony of experts (“hot tubbing”), chess clock procedures, and the like.  These techniques are slowly gaining popularity in U.S. arbitrations, where they make sense, as counsel gain experience with them.  I do not force such ideas on the parties, but I generally highlight how they can be efficient and cost-effective, and are worth considering.

GET TO KNOW ANDY & HEAR HIS TIPS FOR FELLOW DISPUTE RESOLVERS

What geographic area will you serve as a mediator/arbitrator?

I work world-wide.  My first international dispute, about building offshore oil platforms for the Arabian Gulf, came along in 1986, and international matters have been a part of my practice ever since.  I love the challenges of dealing with people and parties from very different cultures.  In addition to matters all across the U.S., my experience at this point includes disputes in Europe, Asia, South America and the Middle East.

What is your experience and thoughts regarding virtual ADR?

I have little doubt but that virtual mediations in particular will continue to be popular even after pandemic restrictions are over.  For many cases, the advantages in terms of cost savings and flexibility are too significant.  JAMS mediators generally report that settlement seems to be a bit harder to achieve in the virtual setting, but, all in all, it works amazingly well.

How can ‘dispute resolvers’ better resolve disputes?

The key is keeping firmly in mind that for 98% of clients, winning a favorable award at the end of arbitration is not the goal.  The goal is, instead, to swiftly achieve a settlement or other resolution that is consistent with the clients’ business objectives, at as little cost as possible.  Certainly, settlement is not always achievable and arbitration is necessary, but I am favorably impressed when counsel appreciate that working out efficiencies in the process and not bickering over procedural details benefits both sides and prejudices neither.

How does the Forum and Division 1 relate to your mediation and arbitration practices?

The Forum and the Divisions, especially Division 1, are my professional touchstones.  Forum meetings keep me in touch with my construction lawyer friends around the country.  And I always go home happy to have learned a new thing or two about current trends and what is happening in the industry.  In every case I arbitrate or mediate, it seems like something that I learned through the Forum becomes useful and benefits my efforts as a neutral.  The Forum has been a central part of my development as a construction lawyer and a major source of fun experiences and lasting friendships.

What was your first Forum meeting?

I actually attended the Forum’s very first Annual Meeting, which was held at the Brown Palace Hotel in Denver in the early 1980s.  I didn’t really get hooked on the Forum until about 1998, however, when I was asked to join the Division 10 Steering Committee.  I have been very active ever since, moving through the ranks until becoming Chair in 2012-13.What hobbies, activities, or interests do you do outside of work and the Forum? 

I am an inveterate traveler and enjoy visiting and exploring new places, both in the U.S. and internationally.  As I like to say, there are very few places I am not interested in visiting at least once.  I also spend a lot of time on my bicycle.  Hiking in the mountains, however, is probably my favorite way to spend a day.

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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!).

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Andrew D. Ness, Esq., CIArb brings 40 years of domestic and international experience in resolving complex business disputes, with expertise in construction, engineering, design and energy issues. As an advocate, Mr. Ness represented contractors, engineers and other design professionals, as well as owners and developers, on an extraordinary range of projects and problems, including numerous megaprojects around the world. He has played a lead role in major domestic and international arbitrations and mediations involving large, highly complex disputes across a wide variety of diverse jurisdictions and arbitral rules.

A consummate professional, Mr. Ness is well known for cutting through entrenched positions to find creative, practical solutions. He combines intelligence and humor with outstanding problem-solving skills. One of his many strengths is the ability to distill complex facts and issues to their essence. Mr. Ness also has extensive experience handling federal and state government projects and contracting issues, including manufacturing, production and project delays.

Contact Andy: adness@jamsadr.org | 202.492.9180 

Case Manager: Stacey Harrison: sharrison@jamsadr.org 

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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 new 2020 Student Liaison of the ABA's Forum on Construction Law. This summer, she was invited to rejoin Hinckley Allen as a Summer Associate with a focus in the Construction and Public Contracts group. At school, Lexie is the President of the Real Estate Law Society and the President of the Eagle-to-Eagle Mentoring Program. Lexie earned her B.A. and a varsity letter from Boston College in 2017. 

Contact Lexie: pereirle@bc.edu | https://www.linkedin.com/in/lexie-pereira/

What's Up With Division 1 (No. 4) -- REGISTER FOR OUR 10/20 BUILDING RESULTS PROGRAM

Well . . . summer is now over, and if you are anything like the Division 1 members I have spoken with, you are now consumed with a backlog of zoom depositions and rescheduling of mediations and arbitrations.  While it may have taken us (and the courts) a few months to get here, we are now embracing the change and improving our advocacy skills through the virtual platforms.  It is stressful, exciting, (surprisingly) productive (sometimes), and yet (often) unpredictably inefficient.  

In other parts of our country or with certain cases, in-person proceedings are picking up.  I learned that two Division 1 legends have been engaging in in-person arbitration hearings with each other in recent weeks (sounds like a good upcoming Division 1 lunch program!).  

At Division 1, we can discuss our experiences with each other during this time period of rapid change and come out of it all the stronger.  

As dispute resolvers, Division 1 Members are resilient and, with our colleagues, will develop the best practices together to represent our clients in the best possible manner during the COVID era.  Keep up the good work.  If you want to share your experiences, contact me or another member of our Steering Committee and we can find a way to help you share your best practices (through this blog, a program, or some other mechanism).  

I am excited to highlight and encourage your attendance at one upcoming program planned by Division 1 on October 20, 2020 at 5PM ET.  

The Forum has a strong history of recruiting law student members.  Pre-COVID, many of us visited our local law schools to talk about the practice of construction law and the benefits of joining the ABA Forum on Construction Law.  

Division 1 (and The Dispute Resolver blog) is lucky to have Lexie Pereira (the Forum's law student division liaison) as an active member of our team.  Along with Roy Wagner, the Forum's Membership Committee representative, Lexie and others from Division 1 have planned the Building Results: A Panel for Law Students Interested in Dispute Resolution & Construction Law for October 20th at 5-6:30 PM ET.  It is our effort to virtually reach out to law students encouraging them to learn about the practice of construction law and the Forum.  

The first half of the program will be a panel discussion led by four excellent Division 1 members of diverse practice areas and experience.  

The second half will be a networking component.  That is where we NEED YOUR HELP! This networking session will be an opportunity for you to meet law students who are interested in the practice of construction law, but also to network with your fellow Forum members.  

Please register for the program by CLICKING HERE. 

Please also spread the word to your local construction bar associations and law schools!

If you have any questions or suggestions regarding the program, please contact me (rtdunn@pierceatwood.com).  

Keep up the great work Division 1!  If you are interested in getting more involved with our Division, please contact me.  

Tom Dunn

Chair, Division 1 (Litigation & Dispute Resolution)

401-490-3418 (d)

rtdunn@PierceAtwood.com

  

COVID-19 Leadership Series: The Seven Month Itch: Pandemic Fatigue and the AEC Work Force

Free Webinar: September 22, 2020 at 4pm ET

Click Here to Register

Labor and employment challenges for all stakeholders in the construction and design industry continues. Our panel will discuss the latest developments in government responses, updates on Paycheck Protection Program along with job-site safety, retention, and working from home, among other topics.

Speakers:
Erin Ebeler Rolf, Attorney, Woods Aitken LLP, Lincoln, Nebraska
Oded Sten, Chief Commercial Officer, The Conti Group, Edison, New Jersey
Jodi Taylor, Associate General Counsel, Brasfield & Gorrie LLC, Atlanta, Georgia

In order to serve and provide resources to our Forum members, the greater ABA, and the general public, the ABA Forum on Construction Law and strategic partners have developed a multi-part webinar series exploring how the COVID-19 pandemic is impacting construction and design and identifying options for response and risk management/mitigation. In these free, non-CLE webinars, industry leaders and attendees will have the opportunity to exchange information, learn from one another, raise questions, and offer options for addressing the deepening effects of the crisis.

CLE Webinar: Become the Master of Your Master Construction Subcontract Agreements

September 24th, 2020 | 1-2:30 PM ET

CLE 1.5
 
Construction attorneys and their clients are increasingly using master agreements, especially at the subcontract level, to become more efficient in their contract negotiations.

This webinar will explain the advantages and potential traps you should look for in this new development. You will learn the contractual tools necessary to create master prime agreements and master subcontract agreements. You will learn how to structure and organize terms in the master agreement as well as a project order so that project specifics and master terms complement each other and avoid conflicts between the contract documents. An emphasis will be placed on best practice in negotiating subcontract terms. The recently published ConsensusDocs standard master subcontract agreement and project work order will help illustrate how an industry standard master contract can assist construction attorneys and their clients focus on risk allocation advantages and avoid potential pitfalls.

Panelists
Brian Perlberg - ConsensusDocs | Arlington, VA
Kevin F Peartree - Ernstrom & Dreste, LLP | Rochester, NY
Kristen Lynn Wendler - Independent Contractor | Syracuse, NY

Co-Sponsor: ConsensusDocs

Click Here to Register NOW

Best Practices for Remote Mediation

Despite the ongoing pandemic, attorneys require effective methods for resolving construction disputes. 2020 has proven that legal conflicts are the natural result of the unprecedented uncertainty a global pandemic can produce. Parties need to resolve conflicts to continue business operations, pay employees, and protect property. Litigators have increasingly utilized virtual meeting software to achieve these goals.

Mediation can be a great opportunity for litigators to resolve construction disputes without the time and expense of going to trial. Given the ongoing COVID-19 pandemic, mediations are increasingly being held virtually using technology like Zoom. While many of the same best practices apply, certain aspects of the virtual mediation process are a brave new world. Construction lawyers should be prepared to embrace the new challenges and opportunities offered by the “new normal” of remote mediations.

Like a traditional mediation, successful attorneys invest their time to select the best mediator, prepare clients for the process, and manage expectations. Although these fundamentals continue to apply regardless of the format, this article will focus on steps particular to virtual mediations.

Preparation and Communication

A pre-mediation call remains critical to a productive mediation. Clients, regardless of their level of sophistication, should hear an explanation of the mediation process. This call should both manage a client’s expectations and answer remaining questions about how mediation differs from litigation.

Next, discuss the special characteristics of a virtual mediation. The mediation may include a pre-mediation session with the mediator. One obstacle lawyers report with Zoom mediations is establishing trust and good communication with the mediator. A virtual pre-mediation conference with the mediator may be helpful to help get this process started.

The client may require reassurance that private communication remains available in the context of a virtual meditation. Review expectations about confidentiality and security, such as whether the Zoom mediation should be password protected, and additional security measures, such as utilizing the most current version of Zoom and controlling access to the participants’ locations. Multifactor authentication may be a good idea when privileged, confidential, or sensitive information is involved.

Getting Comfortable with Zoom

This is where things really start to get interesting. Attorneys should make sure to discuss the specifics of Zoom or other virtual meeting technology with clients prior to the mediation. Part of this process is simply increasing a client’s comfort level. Many lawyers have reported conducting a practice or dry-run helpful to walk the client through the process. Some clients may benefit from a friendly reminder about selection of appropriate clothing and location. The client should be in a location with a strong WiFi connection which should be tested in advance. Ideally the location will be without background noise or other potential distractions.

The parties should make sure to allocate a specific amount of time to devote to the mediation, free from distractions and interruptions. This is often challenging when participants are located in their own homes or offices with their phones and computers close at hand. Multitasking and phone pick-ups can easily distract participants from the business at hand.

Plan for confidential communications with your client during the mediation. An additional, private virtual room should be made available. Depending on the client and the case, texting, emailing, or instant messaging may be a workable backup solution.

What About Documents?

Sharing information in advance can help resolve logistical and technical issues prior to the mediation. Zoom allows sharing documents during the mediation through its “share screen” button.

Sharing documents in advance will allow the mediator and other parties the opportunity to review. When confidential documents need to be shared with the mediator only, it is a good idea to establish a standard procedure. Dropbox, Google Drive and other tools can be extremely helpful when used with appropriate precautions and safeguards. Depending on the document, having a hard copy in your hands is never a bad idea. In addition to serving as a back-up for unexpected technology issues, many of us benefit from having a physical document to reference.

The same logic applies to draft settlement agreements. Like other documents, these should be circulated in advance. This way everyone has the opportunity to digest the proposed terms. Hopefully this can help parties focus their energy on the most important disputes. Often a settlement agreement can be edited and shared during the mediation. Adding appropriate labels such as the date and time can help make sure everyone is referencing the identical, most up to date version.

Many mediators will encourage parties to share their mediation briefs with each other. This can be a context where tone becomes very important. A diplomatic tone in a mediation brief may be even more important for Zoom mediations. In virtual meetings parties do not enjoy the same opportunities for building trust and rapport relative to a traditional, in-person meeting. Take this into consideration when deciding the appropriate voice for your mediation brief.

The Day of the Mediation

If the parties have prepared, planned, and consistently communicated leading up to the date of the mediation, the day itself can run surprisingly smooth. Using new technology can always bring unwelcome surprises, but a thorough WiFi test for internet speed can help identify and eliminate many common issues like frozen screens and interrupted audio.

Before any conversation, participants should confirm who is actually in the room. This practice can help maintain confidentiality and help parties feel comfortable to speak freely.

Most virtual meeting platforms will allow the mediator to create separate “breakout rooms.” It is a good idea for the mediator to set these up first, then visit each breakout room individually to confirm everyone is where they need to be. Like traditional mediations, Zoom allows a mediator to travel between separate rooms to conduct private conversations with attorneys and their clients.

Signing the Agreement

If the mediation was productive and the parties are ready to sign an agreement, now what? Electronic signatures can be applied using “DocuSign” and other similar programs. If completing a written settlement agreement is not possible, parties can tentatively agree that all material terms are resolved. Memorialize this agreement in a term sheet.

Even if only a limited or partial agreement is reached, a term sheet can still be created and signed. A good mediator should remind everyone that, notwithstanding this positive development, such a limited, tentative agreement will be unenforceable. Make sure to schedule a second mediation date to keep things moving towards settlement.

Conclusion

Out of necessity, the COVID-19 pandemic has given birth to a flourishing market for virtual meeting technology. The legal uses of Zoom and other platforms will continue to evolve and improve in the future. For now, litigators have already developed enough best practices to settle many disputes remotely. Fortunately, many of the same tips apply. Communication, planning, patience, and preparation continue to be crucial for a successful mediation both on and offline.

Author Patrick McKnight is an associate in the Litigation Department at Klehr Harrison Harvey Branzburg LLP in Philadelphia, Pennsylvania. Patrick also serves on the Klehr Harrison Coronavirus Task Force. He can be reached at pmcknight@klehr.com.

COVID-19 Leadership Roundtable Series: If There's a Silver Lining, Where's the Playbook?

September 15th, 2020 | 4-5PM ET

A Special Forum Crisis Series

Join the discussion!

Contrarian investors and companies find opportunities in good times and bad. More than half a year into the COVID-19 crisis what sectors of the economy are prospering in spite or because of the pandemic?  How will these developing trends shape the future of the construction economy and determine?  Join our Panel to gain insights into how COVID-19 is shaping our economy.

Ken Simonson
Chief Economist
The Associated General Contractors of America

Michael J. Vardaro

Managing Partner
Zetlin & De Chiara LLP

Frank Giunta - Moderator
Partner and President, Americas
HKA Global

Click Here to Register NOW

Free, Non-CLE Webinar

Join the Forum's D&I Brunch on September 17 at 1pm ET

The Keynote Speaker will be Jimmie L. McMillian, Senior Corporate Counsel of the Indianapolis Motor Speedway. Mr. McMillian will discuss his journey from the South Side of Chicago, to Partner at an Am Law 100 firm (which was the subject of New York Times Article), and then to the Speedway. Along the way he learned about the importance of mentorship, the challenges facing black lawyers, and the need to advocate for social justice issues that were important to him. Mr. McMillian will also provide some fascinating facts about his role as senior counsel, and the challenges of hosting the single largest day sporting event in the world (with this year hopefully being the only exception to that distinction).

Click Here to Register NOW

Is Arbitration on the Briefs Right for your Client?

As clients increasingly demand options for timely, efficient dispute resolution, attorneys need to stay apprised of all available alternatives. Private arbitration was developed with efficiency in mind and has become wildly popular in the construction industry, providing parties a means to avoid delays caused by backlog in state and federal court dockets as well as evidentiary and procedural formalities. The American Arbitration Association’s Fast Track Procedures within the Construction Rules further trim the usual arbitration procedures, pushing parties through a streamlined pleading and discovery process. However, even the AAA Fast Track Procedures require significant time and resources, primarily those invested in conducting a hearing before an arbitrator.

Submitting a case for decision on briefs alone, without presenting in-person evidence or argument to the adjudicating body, is common in appellate litigation. It is also frequently used in trial court-level litigation, sometimes without the parties’ consent. Parties agreeing to arbitration on briefs alone, however, is exceedingly rare. Yet, when employed in the appropriate situation, agreeing to submit a dispute to an arbitrator on briefs alone can be a useful tool for quick and efficient dispute resolution and a highly satisfied client. On major construction projects, the commitment to arbitrate certain matters is often made before a dispute arises. So, when is arbitration on the briefs the right choice for your client’s project? And, what can you do to ensure a successful resolution? Let’s explore.

Arbitration on the briefs has two primary benefits. First, it can be highly cost-effective. Eliminating the costs associated with witness and hearing preparation and presentation can significantly reduce the overall price tag of arbitration. Second, arbitration on the briefs provides for speedy dispute resolution without sacrificing equity or expertise. Again, jettisoning a hearing can expedite a final resolution on the merits by weeks, if not months; certain disputes may even be submitted for a decision on the briefs without a traditional discovery process, which all practitioners know can be extremely time-consuming. Furthermore, the arbitration agreement allows the parties to dictate the timeline for decision, eliminating uncertainty and facilitating easy mid-project or mid-term dispute resolution.

Foregoing a hearing is not without its downsides. Without a hearing, an arbitrator may miss or misunderstand certain complex factual issues, and the parties have limited opportunity for clarification. Thus, astute construction attorneys will recognize that arbitration on the briefs is not one-size fits all. Predicting the nature of disputes likely to arise on your project and the evidence necessary to resolving those disputes is critical in 1) deciding whether arbitration on the briefs is appropriate for your client’s project and 2) drafting the terms of such an arrangement. When considering an agreement to arbitration on the briefs, keep in mind the following tips for success.

Identifying the Issues Subject to Arbitration. Not all disputes lend themselves to resolution on written arguments alone. For the same reasons decisions without a hearing are regularly issued in an appellate court setting, an arbitrator’s decision on the briefs is most successful when the dispute is straightforward and turns on a few narrow questions if not a single, objective issue. Lay witness and/or subjective evidence-heavy fact patterns and other, more complex disputes may be difficult for an arbitrator to grasp on paper alone and key details may be lost without an opportunity for the arbitrator to ask questions. Conveying witness credibility and evidentiary context may also be difficult. Accordingly, disputes involving competing expert testimony are not well-suited to resolution by this method. By contrast, a foreseeable, single-issue quarrel that requires either interpretation or application of a contract clause to a limited factual scenario is easily decided with limited party input. For example, in an agreement based primarily on unit prices, disputes over adjustments to unit prices may be well-suited to arbitration on the briefs. Adjustments to unit pricing are often necessitated by either 1) market fluctuations or 2) significant changes to the quantity of units subject to the agreement. Hence, few subjective factual issues will compound a dispute over the equity of an adjustment to an agreed unit price. Design ambiguity controversies and cost-only change order disputes may also lend themselves to resolution through arbitration on the briefs, particularly when employed mid-project to mitigate damages resulting from postponing a final resolution.

Careful Clause Drafting. Once you have identified the types of disputes amenable to arbitration on the briefs, your arbitration clause should carefully identify and describe those disputes to be subjected to arbitration. In addition, the language should plainly outline the particularities of the arbitration process itself. Each condition applied to the process should promote swift and cost-effective adjudication. Contemplate the following terms when developing an agreement to arbitrate without a hearing:

Arbitrator Selection. Before agreeing to arbitration on the briefs, consider the qualifications an arbitrator needs to provide a speedy and fair resolution. Ideally, an arbitrator should be able to jump into a dispute with minimal education on the intricacies of the particular dispute. In pricing disputes, an arbitrator with an accounting or financial background might be valuable. Alternatively, in a design ambiguity scenario, an arbitrator with architectural or design expertise will require less explanation to understand the parties’ respective positions and reach an equitable decision. To avoid wasting the expediency provided by arbitration on the briefs, the parties should also delineate explicit terms as to how a candidate pool will be developed and how the arbitrator will be selected in the event the parties cannot agree.

Specific Timeframes. As discussed above, a timely resolution of your dispute is a principal benefit of arbitration on briefs alone. Thus, the parties should settle on hard and fast deadlines for brief submission and the arbitrator’s decision. If needed, a limited timeframe for seeking clarification or enforcement of the arbitrator’s decision should also be employed.

Evidentiary Limitations. Your arbitration agreement should place strict limitations on the type and volume of evidence each party is permitted to submit in conjunction with its brief. Disputes that may be decided on objective, empirical, and/or documented evidence will find the most success in arbitration without a hearing. This is not to say that no fact witness testimony should be admitted; a successful arbitration on the briefs provision will permit submission of an affidavit or similar sworn statement to verify documentary evidence and provide necessary project details to put the dispute in context. Still, the primary source of evidence submitted to the arbitrator should be documentary, not testimonial. Taking it a step further, restricting evidence included in the briefs to evidence exchanged prior to submitting the case to arbitration may facilitate the arbitrator’s decision making process, and may even promote interparty resolution without arbitration. Similarly, you might also consider a page limitation on the briefs; a limited writing will force each party to concisely state its position, and it will assist the arbitrator in identifying the key issues she must consider in making her decision.

Decision Implementation and Cost Allocation. Finally, consider how an arbitrator’s decision should be effectuated. Should the decision or award be applied retroactively? If so, at what point should its application begin? Take our example of a unit price disagreement. Should the arbitrator’s decision apply only to future units? Or, if the pricing decision applies retroactively, should it apply to all units from the time the adjustment was requested forward? Or from the time the dispute was submitted to arbitration? The answers to these questions depend on the projected disputes and your client’s anticipated position. Another important term to consider in an arbitration on the briefs agreement is an attorney fee-shifting provision. In keeping with the cost-efficiency goal of opting for arbitration on the briefs, an agreement that the prevailing party will recover its attorney’s fees will aid in ensuring only truly unresolvable disputes reach the arbitration phase and dis-incentivize over-lawyering.

Arbitration on the briefs is an interesting dispute resolution procedure to consider for your clients’ future projects and disputes. While it may not benefit all clients or all projects, under the right circumstances, proposing this procedure can yield dividends for your client and allow you to appear strategically savvy and cost-minded.

Author Megan K. George is an attorney in the Lexington, Kentucky office of Stites & Harbison PLLC.  She counsels clients on a diverse array of construction matters and routinely drafts, negotiates and reviews contracts for clients. She also frequently handles complex construction litigation and arbitration, advising clients in all stages of dispute resolution.

What's Up with Division 1 (No. 3) New Division 1 Opportunities Video -- by D1 Steering Committee Member Katie Kohm

Happy Labor Day Weekend Division 1 Members!  

I am happy to announce that Division 1 (Litigation & Dispute Resolution) Steering Committee Member, Katie Kohm, created a video about ways to get involved with D1!  

Please check out the video and contact me (rtdunn@pierceatwood.com) or Katie (kkohm@pierceatwood.com) if you have any questions or want to learn more about getting involved with Division 1!

I hope you all have a safe and relaxing Labor Day Weekend!