Monday, July 27, 2015


We have all seen the recent articles and the blogs reflecting that clients are yearning for more planned, thoughtful, holistic approaches to dispute resolution. As construction litigators, I like to think we are a bit ahead of the curve because we have always attempted to resolve disputes in the same planned and thoughtful ways our clients approach their projects - particularly, with the key objective to collaborate with our clients, opposing parties, and opposing counsel to resolve construction disputes in the most beneficial, efficient, and cost-effective manner. ADR offers several opportunities and tools toward that goal. The Forum’s Construction Law ADR Summit on October 7-9, 2015, in Austin, Texas, offers a unique opportunity for like-minded professionals from multiple disciplines to discuss their viewpoints and appreciate the viewpoints of others to advance the ball together to define and sculpt how ADR will serve construction attorneys and their various clients.

We often fail to recognize that, even before receiving mentoring from seasoned construction lawyers, “younger” construction attorneys and professionals (e.g., “millennials”) share our collective goal of efficient and reasonable dispute resolution, so we should encourage them to transfer their insights across the generational gaps that sometimes hinder collaborative progress.  On Wednesday, October 7, from 2 p.m. to 5 p.m., the Summit will include a Young Lawyers Construction Practicum regarding advocacy in mediation. If you work with young lawyers, please encourage them to attend. And if you are a young lawyer, we encourage you to attend not only the Practicum, but the entire Summit, to sharpen your own skills to better serve your clients but also to provide your unique ideas, experiences, and perspectives to help develop and identify the practical, reasonable, and cost-effective tools and ideas that will shape ADR in the future.

For more information about the Young Lawyers Construction Practicum and the program generally, here is the link to the Forum’s Construction Law ADR Summit Brochure.

Tuesday, July 21, 2015

Please Take This Survey About Email -- Results Presented During D1 Lunch in Austin, TX

Division 1's Lunch Program at the Fall Meeting in Austin, Texas (10/8/2015) will focus on technology and the practice of construction law.
One aspect of the program will be about law practice management -- specifically email

How do Division 1 members manage/process/preserve their emails? Do we have it under control?  Or, are we overwhelmed by email?  

From avoiding losses in productivity to preservation/safely securing client communications, we will have an open dialogue regarding strategies that that we will be able to employ when we get back home from the meeting to reduce the stress involved with email

Please take this 10-question survey -   

If I receive sufficient number of responses, we will share the results at our lunch meeting in Austin. 

Thanks for your assistance and looking forward to seeing everyone in Austin!

Tom Dunn
Division 1 Steering Committee Member

Monday, July 20, 2015

CLE Tip: The ABA's Free CLE Series

Why be a member of the ABA?  What value comes from it?  

Not all members of the Forum on Construction Law or Division 1 are able to be active members.  For these members, the above questions may arise from time to time, why be a member of the ABA? Sometimes these questions may be asked by your law firm management. 

One answer is the Free CLE series provided by ABA.  

I (Tom Dunn) regularly attend these free CLEs.  While they are often on topics outside of my litigation / construction law practice, I find them well done and I ultimately come away with some good information.  I tend to sign-up for them upon receipt of the announcement email.  If I can participate, great!  If not, there is no loss.  

One of these free CLEs is scheduled for this afternoon at 1PM.  It is on Driverless Cars in the Fast Lane: Legality, Safety, and Liability on the Road Ahead.  At the very least, I am sure I will come away from this webinar with some interesting networking talking points.  

Next month's Free CLE is Representing Clients in Mediation: A Master Class in Mediation Advocacy.  This topic fits squarely within Division 1's focus on advocacy.  

So . . . the next time you (or your firm) think you are not getting enough out of the ABA, consider attending these Free CLEs which could get you up to 18 CLE credits each year! 

Friday, July 17, 2015

ADR Tip: Voiding "Sham" Arbitration Agreements

ADR Tip -- If a client presents you with an arbitration clause that identifies rules or an administrator that are unknown or unfamiliar, the arbitration agreement could be void. 

Check out the article written by P. Jean Baker, Young Lawyers: Recognizing "Sham" Agreements to Arbitrate, for the ABA Section of Litigation's Alternative Dispute Resolution's E-Newsletter.  

Ms. Baker describes two cases that refused to enforce arbitration agreements contained within high interest loan transactions which specified that disputes "shall be conducted by the Cheyenne River Sioux Tribal Nation by an authorized representative in accordance with its consumer dispute rules." Inetianbor v. CashCall, Inc., 768 F.3d 1346 (11th Cir. 2014), cert. denied (S. Ct. Apr. 6, 2015); Jackson v. Payday Financial, LLC, 764 F.3d 765 (7th Cir. 2014). 

The arbitration agreements were not enforced because there were lack of arbitration rules and procedures in place to conduct a fair arbitration process.  

Thursday, July 16, 2015

Under Construction Newsletter -- Call for Construction Law Articles

Last month, I was asked to serve as the Associate Editor of the Forum on Construction Law's newsletter, Under Construction.  I had the confidence to apply for the position because of the work I have done on The Dispute Resolver in collaboration with our co-editors.  I am excited to introduce some of the experiments of The Dispute Resolver to Under Construction.  I want feedback from Division 1 members and Forum members on what you all would like to see in Under Construction and how The Dispute Resolver (and other division publications) could collaborate with Under Construction.  

As always, fabulous and interesting content is essential to any publication.  I sent out the email below to a number of my friends from the Forum and construction law colleagues soliciting input and articles.  

If you want to be published or know an attorney (or summer associate) in your office that is interested in a publication opportunity, please share this invitation.  

Thanks for getting involved and contributing to Division 1 and the Forum on Construction Law!

Tom Dunn,

Friends and Colleagues:

With my recent post as Associate Editor of Under Construction (ABA Forum on Construction Law’s newsletter), one of my jobs is to seek out interesting construction law articles along with Under Construction’s Editor, Jayne Czik. 

Consider submitting an article for consideration.  The cool thing is that Under Construction is going back to paper (while also keeping an online component) so it is a great opportunity to be published and speak directly to the Forum’s 6,000+ members.  We are also increasing our use of the Forum’s social media accounts (LinkedIn, Facebook, Twitter) to further distribute #ABAUnderConstruction articles.  The more Forum members engage in the Forum’s social media pages, the more we will be able to send out the Forum’s message so make sure to join the Forum’s LinkedIn groups, like the Forum’s page on Facebook, and follow the Forum on Twitter.

If you are interested in submitting an article or have an article ready to submit, please email Jayne and myself.  We are looking for articles around 1500 words (although we have not yet finalized the paper design) that provide a practical approach/guidance to issues impacting the practice of construction law.  Click here for the rules and procedures for submissions.

If you are not familiar with the newsletter, look at the most recent online edition:

In addition to articles, we are looking for innovative / creative ideas that feature the best attributes of the Forum’s membership such as member features / construction project features / case recaps (war story case studies, lessons learned).  Something with interesting graphics or photos.  Let us know if you have any ideas for this type of submission.   

Please spread the word that Under Construction is accepting articles to your Divisions, Forum friends, and construction colleagues. 

Even if we are not able to use your submission for Under Construction, we will likely find a home for your article/topic with other Forum publications such as The Construction Lawyer, The Dispute Resolver (Division 1’s Blog), The Owner’s Authority (Division 12’s Blog), The Division 4 Triclinium, Division 7’s newsletter, Division 10’s newsletter, Forum’s social media pages, concepts book, etc. 

Thank you and we look forward to reading/editing/publishing your articles!

Tom Dunn

Associate Editor, Under Construction

Tuesday, July 7, 2015

How New AAA Construction Arbitration Rules and Mediation Procedures Are Enacted

As you may have heard, on July 1, 2015, the American Arbitration Association announced the release of updated Construction Arbitration Rules.  Briefly, those changes include:
  •  an automatic referral to mediation for all cases with claims exceeding $100,000 (though each party has the ability to opt out of this process);
  • time limits and additional filing requirements for consolidation and joinder to limit the use of these time-consuming processes to delay proceedings;
  • increased arbitrator control over the exchange of information, particularly electronic documents;
  • new preliminary hearing rules providing detailed guidance to all involved parties and arbitrators as to what issues should be considered at the preliminary hearing;
  •  emergency relief rules for contracts entered on or after July 1, 2015, to appoint an emergency arbitrator within one day of filing the demand for emergency relief; and,
  •  additional authority for arbitrators to respond to parties refusing to comply with the Rules and/or the arbitrator’s orders.

To read more about these rule changes, go to the Construction Industry Arbitration Rules and Mediation Procedures page on the AAA's website.

I had the opportunity to speak with John Bulman of Pierce Atwood LLP about these rule changes. John has been a construction lawyer for over twenty-five years and, in that time, has served frequently as a mediator and arbitrator through the AAA.  He is a past member of the AAA Board and has been involved in the AAA rulemaking process for over a decade.

For this most recent revision of the rules, John served as the American College of Construction Lawyers liaison to the National Construction Dispute Resolution Committee (NCDRC), an organization founded in 1966 by the AAA and other industry and trade organizations.  Currently, thirty different industry organizations including the Forum are represented in the NCDRC.  It is tasked with analyzing proposed rule changes to the AAA Construction Arbitration Rules in addition to creating and providing input on program content and faculty for proposed neutral training and in recruiting qualified neutrals.

The way that rules are changed involves a multi-year process.  The AAA is always gathering comments, feedback, objections, and insight about the rules.  On a periodic basis, the AAA will consider whether to revise its commercial arbitration rules or one of the industry specific rule sets. In addition, the NCDRC intermittently provides its own comments or proposals for possible rule changes.

With respect to this particular set of changes, the rule changes were adopted previously by the AAA for the Commercial Arbitration Rules.  From there, the NCDRC was tasked with determining whether to adopt  similar rules for the Construction Industry. In making this determination, the AAA Vice Presidents held eighteen different focus groups across the country to discuss the rule changes and seek input.  

After receiving input from these focus groups and incorporating comments accordingly, the NCDRC developed and vetted the rules in December of 2014.  From there, the Chair of the AAA’s Practice Committee reviewed and approved the changes. Once that approval was received, the AAA’s senior counsel and staff review the rules to ensure that they are acceptable and consistent with AAA policies and procedures.  After that, the rules were released to the public.

With regard to the current changes, John believes that the checklist for preliminary hearings set forth in Preliminary Hearing Procedures Rule P-2 are extremely important in keeping a particular arbitration proceeding on schedule. Reviewing this checklist, one can see what John means – the checklist is attempting to bring the parties to as early an agreement as possible regarding the key procedural issues in the case. 

It combines the most important parts of an early conference of counsel in federal court – such as dealing with ESI at the beginning of the case – and of a pretrial conference – discussing witnesses, exhibits, the forms of testimony to be provided, and the form of the award.  As John stated to me, failing to address these issues at the beginning of the case only leads to problems and delays down the road.

John also highlighted how important the consolidation provisions are. Too often, he has seen parties wait until late in the proceedings to try to join new parties to an arbitration or to consolidate one arbitration with another. That procedural decision causes a separate arbitrator to be appointed to determine whether consolidation is appropriate – a “Rule 7 arbitrator” – and waiting until late in the process to seek consolidation only serves to delay proceedings.  To address this issue, the Rules have been revised to provide a cutoff date by which the parties must seek consolidation and still get the benefit of having a Rule 7 arbitrator appointed to determine if consolidation is appropriate. Otherwise, if the request comes later in the process, the arbitrators called the “Merits Arbitrators” – the panel appointed to decide the case – will make the determination on consolidation. 

As John noted, the AAA continues to seek feedback regarding its rules and any improvements that you might have.  To that end, Michael A. Marra, who is a Vice President with AAA in Philadelphia, welcomes your telephone calls to discuss any rules issue you might have.  He can be reached at (215) 731-6136.