Office Location: Columbus, Ohio
Email: tnocar@hahnlaw.com
Website: https://www.hahnlaw.com/professionals/j-thomas-nocar/
Law School: The Ohio State University Moritz College of Law
Types of ADR services offered: Arbitration and Mediation
Affiliated ADR organizations: AAA Construction Panel
Geographic area served: Nationwide
A: I am a former builder turned construction attorney. I spent 26 years building before going to law school. I’ve worn every hat in the industry—D/B business owner, owner’s rep, CM at risk, GC, design/builder, subcontractor, and vendor at some point in my prior career. I chose to adapt these experiences to a law career in 2009 with the focus of practicing construction law. Now I commonly represent commercial builders and developers. AAA added me to the Construction Roster in 2022.
Q: What percentage of your current legal practice is spent on ADR work? If less than 100%, what do you do when not serving as an ADR neutral?
A: My ADR practice is small, but growing. I served as a neutral on five cases in 2023. I am primarily a construction attorney counseling clients in practical approaches to dispute avoidance, and representing clients in transactions and litigation.
Q: What are your thoughts on requiring mediation as a contractual prerequisite to litigation or arbitration?
A: Forcing parties to mediate is not a great idea. It is rarely productive. I have been involved—as many of us have—in a mediation where one party shows up for the sole purpose of satisfying the contract clause, and then just leave. A total waste of time. A successful mediation usually involves two willing parties who want to avoid litigation risks and costs, and are capable of seeing past the dispute validities to reach a business decision.
Q: What can attorneys do to best position their clients for a successful mediation outcome?
A: Prepare them for compromise. Set financial expectations using the BATNA (Best Alternative to Negotiated Agreement) approach. Go through anticipated negotiation scenarios. Review the merits of each side’s contentions but remove the emotions where possible. Mediation is for business decisions, not for trial. Assure the client that mediation settlement is voluntary, and understand the walkaway number. Have a settlement agreement in the queue that can be quickly edited with the terms of agreement and signed by the parties that day.
Q: What should attorneys and their clients take into consideration when vetting and/or selecting an arbitrator?
A: (1) the arbitrator's construction industry expertise, both technically and legally specific to your case; (2) whether the arbitrator will control arbitration costs, limit discovery, briefing requirements, etc.; (3) the arbitrator’s tendencies when it comes to awards—do they split the baby or let chips fall where they may—and (4) what factors the arbitrator considers when deciding attorney fee awards.
Q: What advice do you have for parties when considering whether to choose a single arbitrator or a panel?
A: This is generally a function of cost and risk. A panel is generally advisable when the amount in controversy exceeds $2M, when there are several parties, and/or the subject matter is exceedingly diverse or technical. Otherwise, if the single arbitrator passes your vetting as describe above, go forth.
Q: What measures do you take as an arbitrator to ensure arbitration is less costly and more efficient to litigation?
A: Arbitration should be less costly than litigation. I try to limit the amount of discovery to help in this regard. Also, we are trained to allow all evidence to be presented and heard, but I caution the parties that duplicative witnesses and hearsay testimony has little probative value and adds time to the hearing. I also generally favor pre-hearing and closing briefs and discourage opening or closing statements.
Q: How has your prior career in commercial construction management helped you to serve as a neutral in construction cases?
A: My former design/build career provides a wealth of hands-on experience to draw from that commonly expedites my comprehension of the issues in the case. I have performed many times over the very tasks that are at the center of the controversy—issuing contracts and change orders; managing design from concept to completion; creating and managing schedules, submittals and shop drawings; running and documenting progress meetings; coordinating manpower, equipment and material deliveries; managing quality and safety; and dealing with non-performing parties. This insight helps me to quickly cut through the noise to get to the heart of any construction dispute.
Q: What are some of your interests or hobbies?
A: Live music, travel, cooking, and cycling.
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