Office Location: Boston, MA
Licensed in: Massachusetts, Rhode Island, California (inactive)
Email: rtdunn@pierceatwood.com
Website: https://www.pierceatwood.com/people/r-thomas-dunn
Law School: McGeorge School of Law (2004 JD)
Types of ADR services offered: Arbitration
Affiliated ADR organizations: American Arbitration Association
Geographic area served: Massachusetts, Rhode Island, and New England
A: Arbitration and alternative forms to avoid and resolve disputes has interested me since law school. Serving as an arbitrator is rewarding both as a neutral helping people close out disputes, but also as an advocate as it reminds me about how best to communicate with the fact finder.
Q: What percentage of your current legal practice is spent on ADR work? What do you do when not serving as an ADR neutral?
A: About 5% of my practice is currently spent as an arbitrator. My practice primarily focuses on large and complex construction and commercial disputes for owners and contractors. I also assist clients with their construction contracts.
Q: What should attorneys and their clients take into consideration when vetting and/or selecting an arbitrator?
A: Strongly consider the arbitrator’s engagement and leadership roles. Is she active in an organization like the Forum or does she serve on the board of a local construction trade association? Is she a leader of her firm or of a team at her firm/company? Leadership and listening skills are important considerations in the selection of an effective arbitrator. Often parties heavily weight an arbitrator’s specialized knowledge and experience with the subject matter of the dispute. While that is definitely helpful, the benefits of arbitration will not be realized unless the arbitrator helps to manage and control the arbitration process from the initial scheduling conference through final award.
Q: What advice do you have for parties when considering whether to choose a single arbitrator or a panel, limitations on discovery, venue, and other aspects of the arbitration agreement?
A: Give deliberate thought about this question and other options you have at the contracting phase. Not as a contract by contract question, but as a company policy decision. What is the most critical aspect of business disputes for your company . . . winning, speed, low cost, fairness? If your organization chooses arbitration, spend the time to critically evaluate the arbitration process you want for your company. There are available tools, like the AAA ClauseBuilder, to assist you in asking the correct questions. Remember, arbitration is a creature of contract so you can best protect and guide your arbitration experience if you put this critical thinking and work into your contract templates.
Q: What measures do you take as an arbitrator to ensure arbitration is less costly and more efficient to litigation?
A: The preliminary hearing is a critical event in an arbitration. That is the best opportunity for me to meet with the parties to understand the nature of the dispute and ways that we can structure the process to streamline the fair resolution of the dispute. I send out a questionnaire prior to the preliminary hearing that raises questions for counsel to discuss prior to the preliminary hearing. I request a written joint submission that summarizes the parties’ positions on the various issues. I make it a point to specifically invite the parties themselves to the preliminary conference to directly listen to discussions and decisions being made. If consensus and commonality about conducting an efficient arbitration process can be confirmed at the preliminary hearing, there is a greater likelihood that those benefits can be achieved. At least there is a “home base” to bring the parties back to if interests deviate during discovery and information exchange.
Q: In what way do you use technology in the arbitration process?
A: Virtual proceedings for the preliminary hearing and other conferences are very helpful. Hearing virtual testimony is also convenient and efficient. Technology also comes up with assisting parties in reasonable protocols for the exchange of electronic data.
Q: What do you think the future of arbitration will look like?
A: I am hopeful that the construction industry will continue to be a leader in ADR. I see growth in the use of project neutrals for construction projects of varying sizes with the priority fostering collaboration, effective communication, and interim agreements (with a reservation of rights) that allow the project to continue with minimal delays. For more information, see the AAA-ICDR’s Dispute Avoidance and Resolution Board Rules.
Q: What are some of your interests or hobbies?
A: I am a proud father to two teenage children, a tennis player, and Boston sports fan. I am currently on the Governing Committee of the ABA Forum on Construction Law and past-Chair of Division 1.
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