Monday, January 24, 2022

Meet D1’s Neutrals Series: KENNETH C. GIBBS

 

Company: JAMS

Office Location: Los Angeles, CA

Email: kgibbs@jamsadr.com

Website: https://www.jamsadr.com/gibbs/

Law School: UCLA (JD - 1974)

Types of ADR services offered: Mediation and Neutral Evaluation

Geographic area served: USA


Q: Describe the path you took to becoming an ADR neutral.

A: I was the lead/name partner in a law firm specializing in representing clients in construction and engineering matters. After 25 years of doing this, I segued to working as a neutral on construction/engineering disputes.

Q: Describe your background and experience with construction ADR.

A: I have mediated more than 2,500 cases and arbitrated over 200 cases in 25 states over the course of my career. I feel honored to have been designated with the highest-level ranking (Band 1) in construction mediation by Chambers USA every year since the inception of the publication in 2005.

Q: Mediators are oftentimes described as “facilitative,” “evaluative,” or “transformative.” What is your style?

A: Evaluative.

Q: What should attorneys and their clients take into consideration when selecting a mediator?

A: Subject matter experience.

Q: What are your thoughts on requiring mediation as a contractual prerequisite to litigation or arbitration?

A: This is a bad idea. Mediation should be consensual after a dispute has arisen. Not just a “check the box” process.

Q: What can attorneys do to best position their clients for a successful mediation outcome?

A: Give them an honest “best case, worst case, and most likely case” opinion before the mediation.

Q: How can neutral evaluation be used in the context of the mediation process?

A:  It can be used either before mediation takes place or when the parties are at impasse. Most often, I use it at the outset before "formal" mediation takes place—it gives the parties some "context" in which to conduct the mediation.  Obviously, it is a consensual process and there are many variations as to how the neutral evaluation will be conducted.

Q: Are there particular types of matters that lend themselves to the “mediation-evaluation” process described above?

A:  It is a good tool to use where public entities or insurance carriers (often professional liability carriers) are involved. I make my non-binding rulings in writing and for a public entity it provides a quasi-judicial ruling which can be used as justification to resolve a matter. For insurance carriers it gives them additional reasoning by a neutral for internal risk analysis purposes.

Q: What are the pros and cons of employing this sort of process?

A:  The pros are as stated above—a non-binding, quasi-judicial ruling. The cons are cost and time.

Q: What sort of construction disputes lend themselves well to neutral evaluation (either in conjunction with mediation or separately)?

A:  Because of the cost and time involved to conduct a neutral evaluation it is best reserved for "high-value" disputes. Construction/Engineering disputes involving public entities lend themselves well to the process. I have used it many times on Design-Build disputes where standard of care issues are present.


Editor Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law for over a decade. Marissa is a partner at Laurie & Brennan, LLP and represents owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. Marissa can be contacted at mdowns@lauriebrennan.com.

Friday, January 14, 2022

Don't Miss this CLE Webinar by D1 Veterans on Construction Trials! (Jan 19 at 1-2:30 pm ET)

Looking to fine-tune your next construction trial or arbitration?  Click here to register now for the CLE Webinar: Navigating through Key Aspects of a Construction Trial or Arbitration presented by Division 1 veterans Tony Lehman, Luis Prats, Kelsey Funes, and Michael Lane, contributing authors and editors of the recently published Construction Trial Deskbook.

The ABA will seek 1.50 hours of General CLE credit in 60-minute states and 1.80 hours of General CLE credit for this program in 50-minute states. Credit hours are estimated and are subject to each state’s approval and credit rounding rules.

*Florida Bar regulators have stated that attorneys will not receive Florida credit for this ABA program, even if they self-apply.


Note: Online Registration will close at 10AM ET January 19. Anyone that registers afterwards with the ABA Service Center may not receive their confirmation email with their dial in instructions before the start of the webinar.