What's Up at Division 1 (No. 7)

 I am very happy to report that . . . 

A LOT is going on with DIVISION 1 in the start of 2021!  

We have used the occasion of the new year to launch and advance a number of initiatives and projects.  Thanks to the D1 Steering Committee members and our many volunteers for all of your hard work and diligence.  

Some of our updates are described in this monthly post. Contact me (rtdunn@Pierce Atwood.com) if you have questions or would like to get involved.  

1. Division 1 Neutrals Directory 

Given that we are the litigation and dispute resolution division of the ABA Forum on Construction Law, we are lucky to have so many mediators, arbitrators, and other experienced project neutrals in our ranks.  

I am happy to announce that we started a directory of our D1 Neutrals.  The directory has 30+ D1 Neutrals on it now.  You can view it on The Dispute Resolver (new page created to host it), D1's ABA Connect page, and through the google sheets.  We will work to update it on a quarterly basis.  

We hope that you find this directory a helpful resource for your practice.  We invited our D1 Neutrals to submit their answers to be featured on our blog.  As those posts are generated, we will link them to the directory.  

If you want to be added to the Division 1 Neutrals Directory, please fill out the form below:

CLICK HERE TO BE ADDED TO D1 NEUTRALS DIRECTORY

2. Launch of D1's Toolbox Talk Series (TTS)

Last year, we missed meeting up with each other in April at the Annual Meeting in Seattle, in June for the planning retreat in Jackson, October for the Fall Meeting in Memphis, and this month (January) for the Midwinter Meeting in San Diego.  

While we miss the CLEs and other organized events, perhaps more so we lost the opportunity for casual conversations during breaks, in the exhibitor hall, and at the hotel bar.  During those conversations, we talk about our cases, our law firms, and other challenges/successes of our professional (and sometimes personal) lives.  We wanted to find a mechanism where we can take that informal conversations and information sharing back home with us in a short, focused program.  

We turned over this concept to Jade Davis and a group of excellent committee members to implement last year.  After a number of planning calls, they developed a name, a logo, and a schedule to put on these programs every month in 2021 and perhaps beyond!  Below is our information flyer about the TTS programs:

On January 28, Division 1 held its first Toolbox Talk Series about Early Dispute Resolution with a focus on In-House Counsel.  We partnered up with Division 11 (In-House Counsel) for the TTS.  Below was the flyer for the event:

Along with our 50+ participants, we had an excellent substantive discussion about early dispute resolution.  Brian Neuffer set the table for us with a case study where EDR was successfully implemented during a project.  Thereafter, Brian and Daya Naef artfully guided the discussion and conversation from attendees.  

What was cool was that there were contemporaneous conversations happening verbally and in writing (through the chat) during the program.  The chat room enabled much more participant engagement than a normal program could provide.  

One key takeaway that I had from the program was that there is a perception that early dispute resolution is much more likely to occur if both sides of a potential dispute have in-house counsel.  Right or wrong, there is a perception that involvement of outside counsel raises the stakes and could lead to more adversity than compromise.  Many parties agreed that further education of owners regarding the value of early dispute resolution could go a long way.  

While the conversation could have gone on much longer, we followed through on our promise and we concluded the program promptly after 30 minutes. 

If you were not able to join us for our January TTS, please consider joining us next month for the next TTS on

Using Experts in Mediation: What Works and What's Different? 

February 25, 2021 at 12:30PM

RSVP HERE

This program will explore how advocates and neutrals can best use experts to assist in resolving or narrowing the issues in construction disputes. Panelists and attendees will offer examples of how experts can bring technical, emotion-free perspectives to the ADR process that the neutral and advocates lack and need to understand and weigh the risks of competing claims.  

Patricia Thompson and David Ponte will lead the discussion for us.  We are starting 30 minutes after our regular time to accommodate other Forum programing during the Forum's first virtual construction law conference.  

3. Forum's First Virtual Construction Law Conference - Feb. 24-26, 2021

Cassidy Rosenthal, our immediate past chair, is Co-Chairing the Forum's First Virtual Construction Law Conference.  The program is designed for all attorneys and law students who have an interest in construction law.  It blends the Forum's fabulous Fundamentals of Construction Law program in the morning sessions followed by topical and engaging CLEs in the afternoon.  View the Brochure for the program.  

In addition to the CLEs, there will be a complimentary welcome reception for networking, numerous social events (comedy, trivia, cooking), exhibitor rooms, and wellness rooms.  Check out the brochure for registration information.  Space is limited for the social events so sign up as soon as possible!

REGISTER HERE

On Thursday, February 25th at 3PM, Division 1 is partnering up with Division 7 and Division 9 for a virtual escape room.  We will be placed into random teams and tasked with progressing through an escape room. Winners will be announced at the conclusion of the program.  

Michael R. Martin

We are very lucky to have Michael Martin from LitCon sponsor this event for us. This will reduce the cost of registration for our members.  

Be on the lookout very soon for registration information for this special joint event by Divisions 1, 7, and 9!  Space is limited for this program.

4. What's Next? 

Division 1 has some fun and interesting projects in the works for 2021.  These include topical distance learning program in March/April, providing author/speaking opportunities for our members, and more social events.  

At the very least, know that if you join Division 1 (Litigation & Dispute Resolution), you will gain A LOT of value out of your membership.  At a minimum, we will have the following two events every month

• Division Planning Call - Second Monday of the Month at 3PM ET
• D1's Toolbox Talk Series - Fourth Thursday of the Monday at 12PM ET (except for this February @12:30PM 

The monthly planning call is a good opportunity to learn what we are working on, what the Forum is up to, and to bring your ideas/suggestions.  

Please join us and get engaged!  Who knows, you may get a D1 branded DeskCrumbee for raising your hand and lending your perspective! 

D1 Steering Committee Member Rob Ruesch with his Crumbee

Thank you and I look forward to working with you all throughout the balance of this year!  

Tom Dunn

Chair, Division 1 (Litigation & Dispute Resolution)

Addressing Confirmation Bias in Mediation

Confirmation bias is the innate human tendency to look for and interpret information consistent with one’s existing beliefs and to ignore inconsistent information, even if that information is demonstrably true. A trial witness’ devastating demonstration of confirmation bias is the climax of the recent, popular HBO mini-series, The Undoing. While exposing the harm caused by a party’s failure to face damaging facts makes excellent court room drama, in real life, advocates have the ethical obligation to do their best to ensure their clients fully appreciate the risks inherent in their legal dispute well in advance of trial.

However, adverse risk analysis also can be challenging for attorneys, due to their natural confidence in their own skills and a proven tendency of trial lawyers to be unrealistically optimistic about their likely success. While such overconfidence may be natural, overconfidence does not guarantee success. A recent article in the Miami-Dade, Florida Daily Business Review offered a stark example of seasoned trial counsel’s failure to accurately predict the outcome of litigation. Pretrial, the defendant’s “gold standard defense” team estimated the worst-case damage estimate at $1.5 million. The jury disagreed, awarding the plaintiff $72.9 million.

Outside counsel’s preparation of a client for mediation should be a perfect opportunity to ensure the client appreciates the risks of proceeding to trial, especially any risks the client might not welcome or want to credit as being inconsistent with its opinion as to the validity of its claims or defenses.  One way for both counsel and a client to more accurately assess litigation risk in the face of inherent biases is to jointly engage in a formal, disciplined identification of those aspects of the case about which the parties and counsel have little control, and to assess the consequences if these risks do not proceed as hoped.

Such considerations will vary, but might include:

 
Jury issues such as:

• Undisclosed juror bias or cultural considerations or the possibility of not seating a jury with the sophistication and objectivity to resolve complex or emotionally charged issues, especially given the limited number of pre-emptory strikes.

• In a lengthy trial, jurors may stop listening to the defense, because they already believe the plaintiff’s case (which is another example of the risk of confirmation bias) – or the reverse: that the jury will only remember the witnesses they heard most recently.

• The possibility that a juror will research the case or issues on the Internet and, based on adverse publicity, reach a decision unrelated to the trial evidence?

Evidentiary issues such as:

• Losing an important in limine motion. 

• The possibility that the client’s fact or expert witnesses may unexpectedly under-perform, become unavailable, or otherwise are compromised by undisclosed testimony in other cases or unforeseen credibility lapses.

• Unexpectedly overperforming opposing witnesses.

• The difficulty and possibly boring nature of having to present evidence in a lengthy, virtual hearing.

• The risk in multi-party cases, such as construction disputes, that parties necessary to your client’s case may settle before or at trial, leaving your client to present its case alone.

Judicial issues, including:

• Judicial bias, undisclosed or not.

• Unfavorable jury instructions or special verdict form.

Post-trial issues:

• The risk of bad publicity.

• The financial risk of an adverse judgment on other client agreements or relationships.

• Uncollectability of your client’s anticipated, successful money judgment or fee award.

• Unfavorable result on appeal, including the cost of retrial.

Mediation offers a unique challenge to outside counsel to provide their clients the valuable and, indeed, indispensable service of rationally identifying and evaluating the merits and risks of their side of a dispute. Undergoing a disciplined process of identifying and analyzing messy and unwelcome facts as part of mediation preparation should help clients face unpleasant truths. Only then can the client feel confident in deciding whether the other side’s settlement offer really is a better alternative to trial.

Author Patricia H. Thompson, Esq., FCIArb, is  a full-time neutral at JAMS, with experience conducting virtual and in-person mediations, arbitrations and other ADR proceedings in construction and other complex commercial disputes.

Amendments to the ICC Arbitration Rules

The International Chamber of Commerce (ICC) launched a new version of the Arbitration Rules, which entered into force on January 1, 2021. Even if there are no substantial changes, it is important to be aware of the new additions because those amendments address the arbitral procedures in a way that fits the new ‘remote’ reality.

Much has been written and spoken about the post COVID era and the need for technology, not only during the pandemic, but hereinafter. Thus, the purpose of this article is not to be reiterative in that sense, but to remark that some institutions are making efforts to comply with the challenges that this era will demand.

Having said the foregoing, I recall that in a prior article I stated that we transitioned our daily activities almost automatically, giving as examples that arbitration hearings are now being held via videoconference; and also construction-related hearings are using BIM Modeling technology as well as drones in order to know the status of the projects in real time.

In that regard, it is worth noting that the ICC is amending the arbitration rules accordingly by optimizing the use of technology in the written briefs as well as in the way to hold the hearings. Please note that the optimization of the use of technology is not the only amendment to the arbitration rules, but this article will address that change only.

With respect to the written briefs and communications, the new version of the ICC Arbitration Rules, in articles 4 and 5, provide that electronic transmission instead of hard copies is the default method of submitting documents. Even though this was already the general practice, the fact that it is incorporated in the ICC Arbitration Rules represents a good step toward the new reality.

Regarding the use of technology in hearings, article 26 (1) of the new version of the ICC Arbitration Rules, establishes that the Arbitral Tribunal has the authority to decide if the hearing will be held in person or remotely. Such decision will be taken, of course, after hearing the parties and taking into account the circumstances of every case.

Also, it is well known that paragraph (2) of article 25 of the 2017 ICC Arbitration Rules generated some controversy because its reference to “in person” left open to interpretation by some litigators that final arguments shall be in person only.

The new version of the ICC Arbitration Rules solved this issue by removing this paragraph, so there is no doubt that, interpreted jointly with article 26, the hearing can be held remotely.

The amendments addressed in this article are consistent with the nature of arbitration, i.e. a flexible arbitration that has to fit the requirements, not only of the parties, but also to the current reality, which demands increased use of technology as practical.

Litigation and academic topics apart, I wish to my readers and to everybody in the Construction Forum of the American Bar Association, a very good 2021.

I hope to keep in touch in the new year and wish you a 2021 full of good vibes.

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

Florida Supreme Court Amends Summary Judgment Rule Effective May 1, 2021

Division 1 member, Richard Asfar, Partner at Cotney Construction Law, Tampa, Florida, sent us this rule update issued on New Year's Eve by the Florida Supreme Court.  

* * *

For decades, Florida’s summary judgment standard has been among the most stringent in the Country. One intermediate Florida District Court of Appeal has explained that under that standard, “The burden is on the moving party to demonstrate conclusively that the nonmoving party cannot prevail,” and that summary judgment is improper where “the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist[.]” Snyder v. Cheezem Development Corp., 373 So. 2d 719 (Fla. 2d DCA 1979) (emphasis supplied). As a result, Florida lien claims and construction defect claims are less likely to be resolved in whole or part by summary judgment.

That all changed on New Year’s Eve, when the Florida Supreme Court announced it was amending the Florida rule of procedure governing summary judgment motions, Florida Rule of Civil Procedure 1.510. As amended, Florida’s summary judgment rule “shall be construed and applied in accordance with the federal summary judgment standard articulated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).” The amended rule goes into effect on May 1, 2021.

The Florida Supreme Court did not engage in a stare decisis analysis when amending Florida’s summary judgment rule, but it did note that the amendment “align[s] Florida’s summary judgment standard with that of the federal courts and of the supermajority of states that have already adopted the federal summary judgment standard.” In re: Amendments to Florida Rule of Civil Procedure 1.510, Case No. SC20-1490 at *2 (Fla. Dec. 31, 2020).

The rule change should reduce Florida movants’ summary judgment burden. Significantly, movants will no longer be required “to conclusively negate an opposing party's claim before the burden shifts to the nonmoving party.” See, Wendel v. Mease Hospital, Inc., 291 So. 3d 1000, 1001-02 (Fla. 2d DCA 2020) (citing Celotex Corp. v. Catrett, supra). Also, the amended standard will permit the trial court to “assess the proof and ‘where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.’ ” Lopez v. Wilsonart, LLC, 275 So. 3d 831, 834 n.1 (Fla. 5th DCA 2019) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587). The upshot for construction attorneys is that the amended Florida summary judgment standard will result in more Florida lien claims and construction defect claims being resolved at least in part by summary judgment.

The Florida Supreme Court has not yet expressly stated how or whether the rule change will apply to existing cases. But generally, in Florida, procedural or remedial changes “are to be applied retrospectively and are to be applied to pending cases.” Alamo Rent-a-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994). Also, in a companion case, the Florida Supreme Court noted that it was affirming the reversal of a defendant’s summary judgment under the old Florida standard “without prejudice to the [movant’s] ability to seek summary judgment under Florida’s new summary judgment standard, once our rule amendment takes effect.” Wilsonart, LLC v. Lopez, No. SC19-1336 (Fla. Dec. 31, 2020). Accordingly, Florida construction attorneys should be prepared to have this rule change apply to all cases, even cases that have been pending for years, on May 1, 2021.

TBT -- Member Spotlight of Santa (December 2012)

Happy Holidays Division 1 Members!  

Eight years ago I was assigned to do a member feature for The Dispute Resolver.  I had some fun that year with the member feature -- choosing to feature Santa Claus.  I hope you enjoy this blast from the past!  I had fun drafting it :) 

I wish all of you a very healthy, safe, relaxing, and FUN holiday season.  2021 is going to be a great year for Division 1, The Dispute Resolver, and the ABA Forum on Construction Law.  

Thank you to all of our wonderful construction litigators, arbitrators, mediators that make Division 1 such a great group of construction attorneys.  

Happy Holidays and Happy New Year!!!

Tom Dunn

D1 Chair

rtdunn@pierceatwood.com

508-838-9779 (M)

LinkedIn: https://www.linkedin.com/in/rtomdunn/

CDC Releases Specific Guidance for Construction Workers and Their Employers

As COVID cases continue to rise, each state has handled business restrictions differently. Recently, the Centers for Disease Control and Prevention (CDC) has released guidance for what construction workers need to know about COVID-19, and guidance for what their employers should consider moving forward. I believe these are important considerations to keep in mind while advising or consulting with construction industry clients across the spectrum. The following list is an overview of the CDC’s guidance:

1. Reduce Transmission Among Workers

• Actively encourage sick employees to stay at home.
• Consider placing posters with accurate information about COVID-19 and what criteria is needed to discontinue home isolation.
• Implement specific policies to minimize face-to-face contact for employees with higher risk for severe illness.
• Provide employees with access to soap, clean running water, and materials for drying their hands, or provide alcohol-based hand sanitizers containing at least 60% alcohol at stations around the establishment for use by workers.

2. Maintain a Healthy Work Environment

• Create measures to physically separate and increase distance between employees such as modifying work schedules to reduce the total number of workers on a job site at any given time.
• Restrict access to reduce the number of workers in enclosed and confined areas at one time.
• Employers are required to determine, select, provide, and train on correct PPE use and application (29 CFR 1926 Subpart E).

3. Maintain Healthy Business Operations

• Designate a safety and health officer to be responsible for responding to COVID-19 concerns at every jobsite. This safety and health officer could be identified as someone who should be contacted if an employee becomes sick so contact tracing can occur. Note: Confidentiality must be maintained in accordance with the ADA and HIPPA. Employers should not require a positive COVID test result or healthcare provider’s not to validate their illness.
• Follow all applicable local, state, and federal regulations and public health agency guidelines.
• Consider following additional CDC guidelines for businesses and employers to plan and respond to COVID, and the North America’s Building Trades Unions and The Center for Construction Research and Training’s COVID-19 Standards for U.S. Construction Sites.

While this overview is not an exhaustive list of the CDC’s guidance for construction workers, it does highlight some significant suggestions that should be considered in attempt to reduce the spread of COVID and decrease an employer’s potential liability. Moreover, according to a recent Pew Research Center survey, roughly 40% of U.S. adults would “probably” or “definitely” not get the vaccine.  This begs the question - can employers fire their employees for refusing to take a COVID vaccination.

The short answer is yes, but with a few exceptions. First, if a work force is unionized, then the employer needs to refer to the collective bargaining agreement to determine whether the employer can make inoculation mandatory. Second, anti-discrimination laws, such as the Americans with Disabilities Act, might protect workers who do not want to be vaccinated for medical reasons. Also, employees could be protected by the Civil Rights Act of 1964 if taking the vaccine is a violation of a “sincerely held” religious belief. Finally, there is an additional exception that may play a significant role in whether an employer can require their employees be vaccinated - has the state taken action to prevent mandatory inoculation.

State lawmakers in Ohio have proposed new legislation that would protect employees who do not want to get vaccinated from losing their jobs. The “Medical Consumer Protection Act” (House Bill 268) was introduced in 2019 and would stop employers from firing an employee for refusing to be vaccinated.  While this proposed legislation has not been passed, employers should refer to their State’s laws.

With COVID cases on the rise, a new administration set to take office in January, and vaccinations nearing distribution, there are many items to be addressed and planned for in the coming months. While we cannot plan for every scenario, it is important to consider both the CDC’s guidance for construction workers and their employers, and any potential issues that might arise from mandatory inoculation.

Author Christopher M. Wise is an attorney and the Managing Member of Wise Law, LLC in Louisville, Kentucky.

Don’t Mess with Texas: 5th Circuit takes Litigators Back to Law School

 In the recent decision of Sayers Construction, L.L.C.v. Timberline Construction, Inc. and High Voltage, Inc., the Fifth Circuit affirmed a federal district court’s determination that it did not have jurisdiction to vacate an arbitration award in Florida. 976 F.3d 570 (5^th Cir. 2020). The court reminded us that jurisdiction really is power, just like lawyers everywhere learned in their very first civil procedure class in law school. After walking us through the trodden legal framework of Pennoyer, International Shoe, World-Wide Volkswagen, and Burger King, and hinting at the liberal policy of promoting arbitration, the court concluded, “this is Florida’s problem. Not Texas’s.” Sayers Construction, 976 F.3d at 574.

The case serves a friendly reminder of the importance of jurisdiction, especially in the context of arbitration. In this case, the Texas-based general contractor sought to vacate a Florida court’s enforcement of a Florida-based arbitration award. See id. at 572. Step one of the court’s analysis highlighted the most well-known limitation of the Due Process Clause when it comes to jurisdiction of out-of-state defendants: that of “minimum contacts.” See id. at 573. The court pressed that we must always ask whether our counterparts “purposefully avail[ed] [themselves] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” See id. (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98 (1980)). Here, the general contractor defendant pressed that this was a standard breach of contract dispute where “minimum contacts” existed because (1) subcontractors solicited a business relationship with the general contractor in Texas, (2) the subcontractors contracted with the general contractor, which has an office in Texas, (3) subcontractors mailed invoices to general contractor’s office in Texas, and (4) the parties’ contract has a Texas choice-of-law clause. Id. The court found that none of these facts established “minimum contacts.” Importantly, in response to facts (3) and (4), the Fifth Circuit held that, mailing payments, especially when all of the work is performed outside the state, is insufficient to establish “minimum contacts” and choice-of-law clauses are probative, but not dispositive, of purposeful availment. See id. at 574.

With its terse ‘this is not our problem’ ending, the court emphasized that any doubts as to the legitimacy of arbitration should be put to bed. Case law, in conjunction with the Federal Arbitration Act (“FAA”), makes clear that there exists a liberal policy of promoting arbitration, thus making arbitration agreements “valid, irrevocable, and enforceable.” 9 USC § 2. As we all know, arbitration is favored amongst many construction clients due to its privacy, speed, and finality. But with every decision comes a cost. In agreeing to arbitrate, the cost to parties is the relinquishment of much of their right to a court’s decision. Parties may still seek court review of an arbitrator’s decision, but the courts will set that decision aside only in very unusual circumstances. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995). In fact, grounds for vacating arbitral awards are few and far between[1] – and if you’re still not convinced of just how rigorously courts enforce arbitral awards, consider the fact that the Manifest Disregard of Law Doctrine remains one of the few proper grounds of vacatur of an arbitral award and there exists a circuit split as to whether even that is proper. See Philip D. O’Neill, Jr., International Commercial Arbitration 459 (2012).

In conclusion, the case of Sayers Construction, 976 F.3d at 574, is a reminder to experienced lawyers not to lose sight of either the legal frameworks of personal jurisdiction or the FAA. And, of course, litigators everywhere beware: don’t mess with Texas.

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[1] Per the New York Convention on the Enforcement of Foreign Arbitral Awards of 1958 (the “New York Convention”) and the Federal Arbitration Act (“FAA”), courts are directed to confirm arbitral awards unless it is found that there exist grounds for refusal or deferral of recognition. Those grounds include 1(a): incapacity of a party; invalidity under the law to which the parties subjected their agreement, or invalid under the law of the country where the agreement was made; (b) lack of proper notice; an inability by a party to present their case; (c) exceeding the scope of the arbitral agreement; (d) composition of the arbitral authority or process was not as the parties agreed; (e) set aside by a competent authority or in accordance with the law of the arbitral seat; (2)(a) the subject matter may not be lawfully resolved under the law of the place of enforcement; or (b) contrary to the public policy of that jurisdiction. In short, the legal framework and the New York Convention (Article V) provides that the decision to decline to enforce an award is a matter of stringent discretion, for “recognition and enforcement of the award may be refused,” but only very limited circumstances. See Philip D. O’Neill, Jr., International Commercial Arbitration 405-06 (2012).

Author 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 2020 Student Liaison of the ABA's Forum on Construction Law. At school, Lexie is the President of the Real Estate Law Society and the President of the Eagle-to-Eagle Mentoring Program. Lexie grew up in the construction industry and has spent time working as an estimator, field engineer, laborer, and, of course, in the legal capacity at Consigli and formerly Hinckley Allen as a Summer Associate. 

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

Meet D1's Neutrals - Daya Naef

We are excited to introduce Daya Naef for this month's Meet D1's Neutrals feature! Daya is an experienced arbitrator and mediator, with over 20 years of practice. She attended Loyola University New Orleans School of Law studying Civil Law and International Law. We sat down with her, virtually, of course, and asked for her to tell us more about her mediating style and to share practical tips with our fellow ‘dispute resolvers.’ D1, Meet Daya!

 DAYA'S MEDIATION PRACTICE

When and why did you choose to become a mediator?

As early as law school, I was interested in learning a more direct route to dispute resolution than what seemed like the very tedious and complicated route through litigation.  When I graduated, however, family law was the only mediation certification you could get, so I decided to hold off. I started my law practice in New Orleans right after Hurricane Katrina in 2005. Having grown up in the construction industry, I already had subject matter expertise in what was an important subject at the time. Since then, construction has been my focus in both the practice of law and now, since 2012, in the practice of alternative dispute resolution.

I had been using dispute resolution in my practice, but it was not until I was taking time off from practice, while recovering from a major car accident, that I did my 40-Hour Certification and joined the Mediatory Registry in Louisiana. Coming back, I knew I wanted to do more ADR and less traditional litigation. Now I have done over 200 hours of certified training, both nationally and internationally, and I can say I'm pretty well-versed in what's new in the world of mediation.

Can you describe your mediating style?

My purpose and my goal is to get the project back on track. So, my practice is more of an extended pre-mediation where we're not usually together in a room, or Zoom room. Instead, it's more facilitative. I strive to work out as much as possible between the parties before we have an actual “sit down.” The way that I approach things is to resolve them with the parties. For instance, contractors and subcontractors have a lot of friction getting jobs completed. I get their information and see where the commonalities are so that we can keep the job moving or, if it is at completion, work it out so that the parties part as professionals who are able to work together again. Or should they choose to not work together again, then I hope that they part from a better position – a position of completeness – not with animosity where it's going to be gnawing on them and making them want to badmouth the other person after the process.

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

Once we all agree we're going forward with the objective of getting the project back on track, I have the parties make individual statements on an audio recording, either on the phone or Zoom recording (or write a written statement if they prefer), and have them send it to me. I then have them upload the contracts, pictures of what's going on, and any other statements that they want to take. I peruse this information and bring myself up to speed on the job with the goal of finding out (1) where they are on the job, (2) what their commonalities are, and (3) where their sticking points are. Then I go back and interview them separately to see where we can make more alliances. Again, my goal is to keep the job going.

If there are still some sticking points after those two conversations, and especially if there's a job-stop pending, then we schedule a time to get on Zoom together. On Zoom, I go over the things that we have accomplished so far and then the things that we haven't accomplished yet. Believe it or not, at this point, it is pretty smooth sailing getting to a resolution between the parties since we all agreed on that objective from the beginning. So, then my work is done until a new dispute arises. 

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

A mistake I see with parties is that they either do not take it seriously or do not understand the value of actually having a dispute resolved in this alternative manner. As a society, we are litigious-minded and we see going to court as a ‘thing.’ As dispute resolvers, we have the ability to remind parties that they have the power to make their own decisions, with someone who is a neutral third-party holding the space from them when making those decisions. Reminding parties that it often is just not practical to go to court and that there are other options is very important. 

I've been doing surveys over the last year or so the find out different construction companies' legal budgets. The data suggests that there is a certain threshold where a company hires a general counsel. I would encourage those that are not yet there to think about the alternative solutions. For example, I have encouraged some of my clients to consider hiring a project neutral or a pre-engaged dispute resolution professional for the duration of the project. I'm also working with D1's Toolbox talks, enlisting some examples from our D1 members who are using Early Dispute Resolution as In-House Counsel. Be looking out for that event January 28, 2021!

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

Listening skills, seeing the big picture, and creating an environment for people to pause, be listened to, and be heard. Sometimes in the fast-paced world of construction, you have to get people out of their hamster wheel a little bit and say, “okay, look, I am really here to listen to you, but need you to help me help you.” So, I guess it is like being part mediator, part social worker. Also, cultural sensitivity skills, especially in this virtual era, are important. It is best to avoid culture shock when “Zooming” into different areas of the country by going slowly and adjusting to the norms.

How can ‘dispute resolvers’ better resolve disputes?

Gaining a comfort with working on video and using technology are important skills for 'dispute resolvers.' We've gone from typewriters and dictaphones to fax machines and email to now Zoom conferences. There are great benefits to this new technology, especially in terms of real-time document sharing, that I think everyone should get on board with (if they're not already!). I’ve been on a committee in the DR Section putting together an info-video for attorneys and their clients to get familiarized with what a Zoom mediation looks like and what they can expect. That should be out by the Spring meeting. Stay tuned.

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

I've had the best time being in the Forum. I've been to the meetings in Nashville, Philadelphia, and Chicago, as well as New Orleans. My first Forum experience was when the meeting was in New Orleans, I think it was 2006 or 2007, right after Hurricane Katrina. I had just started my law practice there and someone actually reached out to me and said that they'd waive my conference fees if I came because I was a young woman professional member who just started practicing. The meeting was just great. I joined Division 8 because I was interested in learning more about construction internationally. Afterwards, we all went to dinner at Delmonico's private room, and just had a ball. I could not believe that I was so young and new to practice, and yet had the opportunity to meet some of the some of the stars of the Forum at the time. Since then, I've gotten more involved with the ABA. I’m serving a second term as co-chair for the Women in Dispute Resolution (WIDR), as well as being one of the liaisons between the Forum on Construction Law and the DR Section.

So, the Forum has clearly served as a resource for my development. There are certain members that if I have a question or somebody needs a referral, I literally just hop on LinkedIn messenger and send them a message. Similarly, , in a matter of minutes, I can find an attorney in San Antonio for something because I've met someone through the Forum. The Forum has built a community, or like a fraternity, of the legal practice that we don't always get anymore. We have such a diversity of practice now, too. The Forum is all over the country and we do all these different things. It's so amazing.

What hobbies, activities, or interests do you do outside of work and the Forum? 

I'm an artist. It's a pretty dedicated hobby. I've gone to art school and studied in Italy, D.C., and New York. I draw with charcoal and pencil, usually figure studies. So, yes, that's nude people. Sometimes people think that's weird, but it does come from the classics – Michelangelo, Leonardo da Vinci – classical art school, as opposed to modern art school. I love it.

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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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Daya J. Naef, Esq. is a third-generation member of the Construction and Real Estate industries. At an early age she gained experience working with her family’s residential construction company and was in close contact with relatives working as realtors, brokers, interior designers, developers and commercial contractors. When she decided to pursue her legal career, specializing in construction was a natural fit. She has represented general contractors, subcontractors, suppliers, owners, developers, condominium associations, property managers, design professionals, agencies, associations and municipalities/non-governmental organizations in Michigan since 1999, and Louisiana since 2005.

Daya has a stellar reputation for seeing a job through from start to finish. She is proficient in drafting and reviewing construction contracts, preparing and filing liens/releases and bond/insurance claims. In addition, Daya can handle business formations, office and site set-ups, real estate transactions, title opinions or reviews, compliance audits, municipal and state taxing issues, board complaints and multi-party mediation or arbitration. Daya can also serve as a project neutral or independent decision-maker.

Because of the depth of Daya’s knowledge of construction law and her excellent communication skills, her clients know what to expect in terms of time, outcome and cost. By choosing Daya Naef, LLC as your consultant, mediator, arbitrator, or legal service provider, you will gain reliable expertise and excellent service.

Contact Daya: daya@dayanaef.com | 504.669.1020

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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, graduating in Spring 2022 and 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 2020 Student Liaison of the ABA's Forum on Construction Law. At school, Lexie is the President of the Real Estate Law Society and the President of the Eagle-to-Eagle Mentoring Program. Lexie grew up in the construction industry and has spent time working as an estimator, field engineer, laborer, and, of course, in the legal capacity at Consigli and formerly at Hinckley Allen as a Summer Associate. 

Contact Lexie: pereirle@bc.edu | 407.782.2717 | https://www.linkedin.com/in/lexie-pereira/

Contact Tracing Technology May Lead to Litigation

The COVID-19 pandemic is forcing construction attorneys to consider unprecedented legal issues ranging from government restrictions on work and travel, to monitoring the latest epidemiological research. Clients across the construction industry have turned to their legal counsel for advice on issues such as reopening plans, compliance with government regulations, and employee safety.

One concern clients express is the difficulty monitoring which employees have been exposed to COVID-19. Technology assisted contact tracing may seem like a silver bullet solution to this problem, but some experts worry it could lead to litigation.

This article will give a brief background of contact tracing technology and discuss some of the potential pitfalls attorneys should be aware of when advising clients.

Balancing Safety and Privacy

Employers have a duty to ensure a safe workplace. This responsibility has become particularly sensitive during the COVID-19 pandemic. As more construction sites resumed in-person operations this summer, employers we forced to carefully consider the details of their reopening plans.

The focus of reopening plans has, quite understandably, centered around employee and customer safety. However, employee privacy is quickly emerging as another possible cause for concern. Some employers have announced reopening plans involving contact tracing technology to help maintain workplace safety. While this new technology may be valuable, contact tracing technology also presents several potential legal issues.

What is Contact Tracing?

Contact tracing has been used by health officials for at least 100 years to help understand and limit the transmission of infectious diseases. Historically this process has involved a time-consuming process of in-person interviews.

Today, Technology Assisted Contact Tracing (TACT) is being used by some businesses and governments to automate this process. Although TACT is a broad term, much of the attention has focused on the use of mobile phone location data to track the movements of individuals and determine if they have been exposed to the virus. Privacy advocates have raised concerns over the use of TACT by governments. However, for reasons discussed below, employers should also be aware of the risks.

TACT covers a broad range of practices, but the most controversial involves downloading an application to the user’s smartphone. The application uses a combination of health and location data to determine whether the user has encountered a person who has tested positive.

Several important technical distinctions in TACT technology have arisen from the initial experience of governments and employers. The most significant distinction is how the technology tracks a user’s location data. The use of GPS data can lead to a centralized repository of information more likely to give rise to privacy concerns. Alternatively, the use of Bluetooth technology appears to avoid many of these potential problems.

TACT in the Workplace

Employers face the difficult task of balancing employee safety and employee privacy. Employers have a duty to ensure their workplace is safe for employees and customers. As a result, many employers are considering implementing some form of TACT. As employees gradually return to work and stay-at-home orders are lifted, it is difficult to know which employees have been exposed. TACT offers the attractive prospect of assisting employers maintain a safe workplace during the reopening process.

Employers should be mindful of the potential risks arising from utilizing this technology. Under OSHA, employers have a general duty to provide workers with “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA and the CDC do not appear to have provided specific guidance on contact tracing technology. Although the EEOC released updated return-to-work guidance regarding workplace discrimination, it does not address contact tracing technology specifically.

Potential Sources of Litigation

Notwithstanding general OSHA and CDC requirements, employers should be aware of the following risks before including TACT in their return to work plan:

    1. Employee Privacy Rights

Many states, most notably California, have some form of data privacy laws which may be implicated. The California Consumer Privacy Act (CCPA) contains several exceptions for employee data, but these exceptions are not unlimited. For example, employers with California employees may be required to provide disclosures before implementing TACT. Employers should be aware the CCPA contains a private right of action for violations.

    2. Federal Employment Laws

Like temperature screenings and other COVID-related safety procedures, application of TACT in an uneven manner could give rise to discrimination claims. Employers should make sure to avoid targeting policies towards specific groups, even if these groups have been identified by health experts as being at an elevated risk (older workers, etc.). Any reopening plan should ensure compliance with Title VII, the ADEA, the ADA, and other federal laws. Employers considered covered entities under HIPAA will likely face additional restrictions while using contact tracing technology.

    3. State and Local Government Requirements

Many state and local governments have Orders specific to businesses operating during the reopening process. Most states also have their own data breach notification laws. These local requirements vary by jurisdiction and often carry significant penalties.

    4. Malware and Cybersecurity

Recently, twelve contact tracing apps were reported to contain malware. Hackers used these apps to infect devices with viruses and steal user’s data. Although it remains unclear how many users fell victim to the breach, the event underscores the importance of conducting appropriate due diligence on any product before implementation.

    5. Practical Problems

Other practical problems can arise, particularly if employers make the use of TACT mandatory for employees. For example, if downloading a contract tracing app is a mandatory component of an employer’s reopening plan, employees without smartphones may be unable to resume normal operations. Furthermore, the actual effectiveness of TACT remains unresolved. To be effective, both employees and a large majority of other individuals in the community must carry a smartphone with them at all times. Also, the potential for false positives and other technology malfunctions will need to be addressed.

Conclusion

The level of risk created by including TACT in a workplace reopening plan depends on the details of the program and the technology. Important variables include, but are not limited to; the extent to which the program is mandatory, whether the program allows employers access to employee data, the type of geolocation technology involved, and whether apps are installed to an employer-issued versus an employee’s personal device.

It should be noted that competing COVID-19-related data privacy proposals have been introduced in Congress. While the future of these proposals is not clear, their enactment would likely have a direct impact on employers using TACT to maintain a healthy workplace environment.

Employers should ensure the personal health information of employees is kept private and secure. This requires a thorough understanding of any technology prior to implementation in the workplace. Maintaining a balance between employee safety and employee privacy has never been more difficult. Unfortunately, this may be another aspect of the “new normal” for employers to live with for the foreseeable future.

Author Patrick McKnight is an associate in the Litigation Department at Klehr Harrison. He focuses his practice on corporate and complex commercial litigation, employment law, and cybersecurity.

A previous version of this article was published on the Klehr Harrison website.