Toolbox Talk Series Recap – In-House Counsel's Perspective on Improving Construction Arbitration

In the March 23, 2023 edition of Division 1’s Toolbox Talk Series, Leslie King O’Neal, Patricia H. Thompson, and Laura C. Abrahamson of JAMS offered insight about how outside counsel can approach arbitration to better serve clients and meet the needs of in-house counsel. The main themes discussed were communication and creative approaches to save costs.

1.     Communication

The panel emphasized the need for clear communication with in-house counsel about the plan for arbitration. Specifically, O'Neal highlighted in-house counsel's need to know which project personnel will be called upon to develop facts and to ultimately testify. Outside counsel must remember that the client’s main business is construction, not disputes. Providing details on which personnel will be involved in the dispute and the scope of that involvement allows the client to better plan coordinate schedules on current construction projects and manage workloads.

Abrahamson also suggested inviting in-house counsel to the initial conference with the arbitrators. Not only does this step set the tone for collaboration and signal to the arbitrators the client’s commitment to arbitration, but it also allows in-house counsel to weigh business considerations before agreeing to a proposed schedule. There is always a trade-off between speedy, cost-efficient resolution and taking the time to marshal all available evidence. In addition, there may be a large project or other business operations that would prevent the client from meeting an aggressive schedule. In-house counsel is well-positioned to balance these considerations. 

2.     Creative Approach – Do Not Treat Arbitration Like Litigation

As Thompson said, time is money and money is money. Arbitration gives parties greater freedom of choice than litigation. Outside counsel would be wise to take advantage of that freedom to better meet their client’s needs. One of the primary advantages of arbitration is the potential for cost-savings from a more efficient process, but too often parties default into a litigation approach and do not realize these savings. Generally, arbitrators will go along with a procedure that the parties agree to, especially where it results in time or cost savings.

One of the avenues to create a more efficient process that the panel discussed was using written witness statements rather direct examination (a hallmark of international arbitration). Written statements can eliminate the need for depositions for fact witnesses and reduces the duration of the arbitration hearing.

Other potential procedures discussed included grouping witnesses by issue where there are multiple distinct issues in dispute (such as separating roof and window witnesses in a construction defect case here distinct defects are alleged at each area), creating summaries and indices for the arbitrators to avoid the costs of arbitrators searching through documents, issuing executive summaries of expert reports (potentially paired with a detailed PowerPoint) rather than a lengthy expert report, and “hot-tubbing” experts. The May 25, 2023 Toolbox Talk will offer a more detailed discussion on hot tubbing experts.

Thank you to Leslie, Patricia, and Laura for the valuable discussion on how to better serve our clients in arbitration. 

Click here to view the discussion in its entirety.  

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Author Douglas J. Mackin is a construction attorney with Cozen O’Connor in Boston, Massachusetts. Douglas counsels owners, developers, contractors, and subcontractors in all phases of a construction project, from contract negotiation through to completion, including disputes, litigation and arbitration. Douglas can be contacted at dmackin@cozen.com.