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.

____________________________________________________________

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!).

_____________________________________________________________

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 

_____________________________________________________________

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!  

What's Up with Division 1 (No. 2 | August 2020)

Tomorrow (September 1st) is the start of the ABA Bar Year.  This is when the changes in the ABA leadership positions formally go into effect.  As such, tomorrow I will officially be the Chair of Division 1! 

I want to take this opportunity to say THANKS to Cassidy Rosenthal for doing a fabulous job as Division 1 Chair.  After serving on the D1 steering committee for many years together and planning the Fall 2017 Meeting together in Boston, I have been really impressed with Cassidy's work ethic, professionalism, and skill.  Division 1 is SO LUCKY to have Cassidy's leadership and friendship.  

During her term as Division 1 Chair, Cassidy created our logo during her term and used the division funds to purchase insulated mugs.  Without complaint, she hauled those mugs to two different meetings to hand them out to members.  I think there may still be a dozen or so of those mugs which I will likely bring with me to San Diego at the midwinter meeting in January 2021.  

During this month's steering committee call, we discussed what we should purchase for the 2019/2020 Bar Year.  We selected D1 branded desk vacuums! 

I will be mailing these vacuums to Division 1's Steering Committee Members, Liaisons, and other active volunteers.  If you are interested in receiving one of these, please contact me (rtdunn@PierceAtwood.com).  Once you agree to take on an initiative for Division 1, will mail you one of these vacuums!!

We are starting the bar year off with a lot of ideas and energy.  Here are some highlights!

1. Getting Involved in Division 1 Video.  Katie Kohm created a 7 minute video for interested Forum members to learn about how to get involved in Division 1.  She will be sending it out to new members who have joined our ABA Connect page and otherwise circulating it.  Thanks Katie!

2. Law School Outreach Event.  We have our team for this panel discussion assembled.  The event will be moderated by The Dispute Resolver contributor, Lexie Pereira.  The panelists will be Ed Green (D1 In-House Counsel Liaison), Roy Wagner, Alex Dockery, and Patrick McKnight (also The Dispute Resolver contributor).  MJ Torres-Martin and Chris Sullivan are helping plan this event which will likely occur in mid-October.  

3. Construction Checklist Book.  An editor for the Construction Checklist Book sent an email to all Division Chairs asking for input regarding the publication and seeking authors.  I have asked Mike Lane and Jade Davis to lead this effort for Division 1.  

4. Rescheduled Forum Meetings.  The Fall 2020 Meeting in Memphis is not going forward this October.  The Forum leadership is considering conducting this meeting in the Summer of 2021.  The Annual 2020 Meeting is going forward on October 13-16, 2021 at the same location where it was supposed to occur in April -- Sheraton Grand Hotel, Seattle, WA.  

5. Division 1's Tool Box Talks.  Tom Nocar, Dave Ponte, Scott Griffith, and Jade Davis are planning these roundtable discussions for Division 1.  Some are going to be topical while others will be social in nature.  If you have an interest in joining this planning team, please contact me.  

6. The Dispute Resolver.  The TDR team has done a great job with this blog.  They are using video in their posts which is really cool!  Keep up the great work!

I look forward to working with you all as the Division 1 Chair.  Please send your ideas or just raise your hand and we will find a place for you to get involved!    

Our next Division Steering Committee Call is on Monday, September 14th at 3PM ET. Login information is below: 

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

Meeting ID: 669 178 3882

Password: 826501

Tom Dunn
Division 1 Chair
rtdunn@PierceAtwood.com
401-490-3418

Don't Let the Distance Destroy Your Communication -- Lessons Learned from Arbitration by Zoom

Is “Remote Arbitration” an oxymoron? Or is it the wave of the future?  While most of the ADR rules allow for video presentation of evidence in an arbitration, there is little guidance on full hearings being conducted through remote procedures. In the past, parties have agreed to present one witness via videotape or videoconference where the witness was not able to travel to the venue of the hearing. However, most parties, lawyers and neutrals have been reticent to agree to fully remote proceedings.  With the continued restrictions required by the COVID 19 pandemic, parties, lawyers, and arbitrators are all starting to look at the need to embrace remote proceedings. Click here for an introductory video from the author.

So What’s the Big Deal About Remote Arbitration?

Most lawyers handling dispute resolution and litigation count on the use of their keen communication skills to present persuasive arguments to the trier of fact in a lawsuit.  In arbitration, the neutral (or panel) is the target of the communication. Lawyers are known for using skill in how to examine a witness to elicit the facts and information needed to present their client’s case. Also, the timely use of an exhibit is key – with the technological advances, some of the best trial lawyers have become quite adept in using video clips, charts, and visual images to effectively communicate information and facts, as well as to engage the tier of fact.  However, the successful lawyer also will use various forms of communication other than the presentation of evidence through witnesses, exhibits, and written briefs. Body language and non-verbal cues are critical to the trial lawyer. In addition, the lawyers in an arbitration often “read” the room – both the neutral and the other parties and counsel present to see how various factual and legal arguments are landing, and the reaction can cause a change in strategy, tone, or emphasis.

Non-verbal communication plays an integral part in effective communication.  “In fact, experts have argued that 70 percent of communication is non-verbal and that includes workplace communication.” Body language can tell you how urgent or serious an issue is. Eye contact and posture can convey confidence or sometimes lack of it. Gestures and movements can show enthusiasm or communicate more than the words express.

“One study from Columbia University found that gesticulation helps a speaker communicate effectively with an audience. Researchers explained that someone who gesticulates actually helps convey the fullness of the message they’re trying to deliver. They’re speaking on two levels at once!” “Business Insider also revealed some rather telling facts on verbal communication. Those stats showed that content is only valued at 7% in a presentation. This was verified in Science of People’s research as well. We can’t stress it enough – it’s not what you say, rather, how you say it." While this may or may not be fully accurate, it is telling that much of our effective communication is not just the words and content of your presentation but how you communicate it that will bridge the gap, even across a video screen.

This is why many lawyers are wary to arbitrate via remote processes – it loses the “feel” of the proceeding where the human interchange and interaction communicates so much more in person across a conference room table than through a screen.

However, with the status of the corona virus pandemic, the future of dispute resolution clearly will be dependent upon the use of remote proceedings, and the well-informed practitioner should come to the proverbial table with an approach to make the most of the remote process.

Four Key Considerations For An Effective Remote Arbitration

As more cases are presented through remote arbitration (potentially jury trials in the near future), there are several considerations that practitioners should keep in mind to ensure the most effective representation of their clients. Of course, reams have been written about communication skills and styles, but there are four key considerations for a remote arbitration proceeding to consider: (1) understanding your audience; (2) getting the evidence to your arbitrator; (3) controlling the room; and (4) managing the technology.

1. Understanding Your Audience

While it is important to know your arbitrator’s background, most counsel are not vetting the neutral’s ability to use technology or how the neutral will be able to engage in the process over video or control the process and witnesses.  This is a difficult skill to assess. However, many arbitrators have been working diligently to come up to speed on the technology and have familiarized themselves with the various platforms.  Once more arbitration occur, some neutrals will likely further distinguish themselves in their abilities to manage remote arbitration hearings.

Don’t let the age or background of a neutral be your guide, however.  There are many younger neutrals who are not adept in using the remote programs and older neutrals who are tech savvy and have every cutting edge device available.

Regardless, it is imperative to know and understand who your arbitrator or panel is and the work with your neutrals to ensure that they feel comfortable with the process, the platform, and the related technology needed, such as the right video camera(s).  Before you begin a remote hearing, if the arbitrator does not ask for it, request a joint session to practice on the platform, including ensuring that the arbitrator understands and knows how to control the process and that all can access and view the exhibits effectively. You may wish to have a technology person available for the practice and the remote hearing itself to assist the arbitrator.

2. Getting the Evidence to the Arbitrator

Be sure that you have worked with the arbitrator to have all of the proper procedures and rules in place to allow for an effective remote hearing as well as to ensure that you can get the necessary evidence to your arbitrator.

Do the Rules Provide For What You Need?

Each of the main arbitration providers’ arbitration rules have some rules that address – at least in part - virtual hearings. However, the perceptive practitioner will review the rules and scheduling order carefully to ensure that the evidence needed can be effectively presented. Notably, there is little formal guidance currently for a full merits hearing by internet or other remote presentation.

JAMS Rule 22(a) acknowledges that an arbitrator may vary procedures so long as they are reasonable and appropriate. Rule 22(g) authorizes an arbitrator, at his or her discretion, or upon the parties’ agreement, to conduct the hearing through virtual platforms, stating: “(g) The hearing, or any portion thereof, may be conducted telephonically or videographically with the agreement of the Parties or at the discretion of the arbitrator.” Like JAMS, the American Arbitration Association is mindful of maintaining the efficiency of arbitrations while securing the parties’ rights to be heard and to present their cases (See, R-32(a), AAA Commercial Arbitration Rules and Mediation Procedures). Rule 32(c) gives the arbitrator the right to “allow for the presentation of evidence by alternative means including video conferencing, internet communication, telephonic conferences and means other than an in-person presentation” but also requires that “[s]uch alternative means must afford a full opportunity for all parties to present any evidence that the arbitrator deems material and relevant to the resolution of the dispute and, when involving witnesses, provide an opportunity for cross-examination.”

Neither the International Institute for Conflict Prevention & Resolution (“CPR”) the International Chamber of Commerce (“ICC”), the London Court of International Arbitration (“LCIA”), nor the Singapore International Arbitration Centre (“SIAC”)  provide any specific rules for full merits hearings by video. There are not specific rules for how such video hearings should proceed in any of the ADR providers’ rules; therefore, counsel should seek a scheduling order with specific details on how the proceedings are to be conducted including the split of time, presentation of witness testimony and hearing timetables, production of exhibits, and opening and closing statements.

Getting the Witness Testimony Clearly Communicated

Many practitioners are concerned about the ability to test the credibility of witnesses in a videoconference format. However, this issue can be overcome with careful preparation of the witnesses, and having clear rules in the scheduling order addressing where and how witnesses can be presented (ensuring there is no coaching or others in the room).  In fact, many arbitrators assert that credibility issues are not as critical as many lawyers may believe. The arbitrator will still be able to observe the witness during video testimony and observe facial expressions and reactions. In fact, as stated by arbitrator Wayne Brazil, “We can see initial reactions to questions, reluctance to respond, indirection, indecision, circularity, obfuscation — as well as forthright, straight-on answering (which, we've learned, sometimes can pose the greatest threat to making accurate findings). Given these facts of videoconferencing life, the real question is this: How much is an arbitrator's ability to assess credibility compromised, really, when he or she watches a witness testify, live, on a big screen, instead of watching the witness testify a few yards away in person?”

Instead, when it comes to witness testimony, you must ensure that you are preparing your witness to testify to the arbitrator – but instead of looking at the small screen of the questioning lawyer, the witness needs to be trained to look at the camera on his screen.  When reviewing an on-screen exhibit, the witness should also be trained to periodically look up at his or her camera to respond to the question. One tip is to advise witnesses to imagine the arbitrator is ‘in the camera” and to focus on that instead of the small box of the questioning attorney.

Who Has Control – Remote Exhibits

One of the most important issues that is a difference for many practitioners is the handling of exhibits in a remote proceeding.  Depending on the agreement of the parties, the exhibits can be exchanged in advance between the parties and a set provided to the arbitrator electronically for use during the hearing, or the exhibits can be uploaded onto the remote proceeding site.  If the exhibits are exchanged in advance, a set will also need to be provided to the witness in advance; it is recommended that they be placed in a sealed envelope to be opened by the witness on screen once under oath.

If the exhibits are presented “live,” the question of how to maneuver through the document can be handled by giving the witness “control” of the screen and mouse to scroll through to specific portions of the document. To do this effectively, counsel will need to have carefully pre-prepared the documents and have a separate copy either in hard copy or on a second screen to ensure a crisp and clear presentation of the information to the arbitrator.

Cross-examination and introduction of exhibits that were not pre-planned will be a bit more challenging in a remote setting.  However, having a set of potential exhibits pre-marked can address this issue. For rebuttal, one good option is to have anticipated potential exhibits saved on your desktop and carefully described/labeled with your prepared cross-examination.  Counsel should practice in advance of the hearing uploading the exhibits and while asking questions.  If appropriate, particularly for document-intensive cases, like many construction cases, having a paralegal or tech assistant participate and upload your exhibits will make the process more streamlined and prevent counsel from distractions of trying to find the right exhibit.

3. Issues Raised By Who Is “In The Room”

One other question to consider before you proceed with the arbitration hearing is how to maintain the confidentiality of the process and who will be allowed to be in the videoconference and when. Will witnesses be held in a “waiting room” and be admitted when their time slot is ready?  Will counsel have pre-set times for when witnesses will be called? Will witnesses be called out of order? These issues will require a discussion of counsel and the arbitrator to resolve these issues in advance.

4. Technology- Choose the Platform

What platform will be used is another consideration that will need to be agreed upon early on. This will allow counsel sufficient advance time to practice and be familiar with the platform. In addition, you can work with your witnesses to practice, particularly with how to work with the exhibits and how to readily find sections on the documents in response to questions posed.

One key issue is to anticipate and plan for technology hiccups.  Have a designated person for trouble-shooting on standby to jump in and have a ready text message to bring them into the call. In addition, be sure that the arbitrator and counsel provide and exchange contact information and the arbitrator should also be provided contact information for all witnesses in case of connection issues.  You also may want to consider having a fall back of what to do if there is a problem with connection for any particular witness – will you have them dial in only or require webcam access? Thinking through and having a backup plan will give you more peace of mind and take away the distractions during the hearing.

Overall, conducting a remote arbitration is not the most ideal scenario, but effective lawyers can prepare their witnesses, ensure clarity and credibility of their cases and presentations by being aware of use of non-verbal communication to support their cases, and pre-planning and preparing exhibits carefully and having a plan in place for maneuvering through exhibits to ensure that the information you want the arbitrator to see, understand, and digest.  In addition, paying careful attention to the technical details and discussing how the witnesses will be presented will allow for a smoother process where the more confident counsel’s case can be effectively presented to the arbitrator.

Addendum: Construction companies and practitioners should be aware that some of the ADR providers are starting to develop protocols for remote arbitrations. In fact, CPR has developed a Model Procedure Order for remote arbitrations. The model order can be found here.

Author Brenda Radmacher is a Partner in the Los Angeles office of Gordon Rees Scully Mansukhani LLP and a noted expert in construction law.  Ms. Radmacher is called on as a counselor, litigator, and noted speaker on issues involving land owners, general contractors, developers, and builders.  Ms. Radmacher's practice emphasizes resolving complex construction disputes through negotiation, mediation, and, when necessary, arbitration and litigation, on projects in California, nationwide, and internationally.

Virtual Arbitration CLE - August 19 1PM ET

With many civil court proceedings on hold or delayed indefinitely, online arbitration is becoming more and more prevalent.

The ABA Forum on Construction Law's panel includes two litigators (including a Division 1 member - Jessica Sabbath) who gained their experience in virtual hearings after their in-person hearing in New York City was shut down abruptly due to the pandemic. 

The panel also includes a senior representative from the American Arbitration Association. 
This CLE will explore the legal issues presented by online hearings, applicable arbitral institution rules, and discuss important considerations and best practices for conducting an arbitration hearing remotely.

Register: https://www.americanbar.org/events-cle/mtg/web/402246508/

1.5 credits of CLE are eligible and registration closes at 10am ET on August 19th.  

Forum's Diversity + Inclusion Brunch (August 20th at 1-2PM ET)

Division 1 Members, the Diversity and Inclusion Committee of the Forum is starting a monthly brunch series.  The first one is scheduled for later this month on August 20th at 1PM ET.  Please register!   

Diversity + Inclusion Brunch

This free webinar will be featuring speaker Tewanee Joseph, CEO of Tewanee Consulting Group, a First Nations-owned and operated company, and leader in planning the 2010 Olympic and Paralympic Winter Games. Mr. Joseph, will discuss how the 2010 Winter Games’ management team’s focus on inclusion was a critical element in ensuring the Games’ success and lasting legacy.  Date: August 20 | 1-2:00 pm ET Speaker: Tewanee Joseph, CEO of Tewanee Consulting Group

Register Now  ⟶❯❯