Top 10 Take-Aways from the 2025 Fall Forum Meeting in Louisville

Last week saw the first-ever meeting of the ABA Forum on Construction Law in Louisville, Kentucky. The event brought together over 500 attorneys, ADR neutrals and consultants for what was the first meeting helmed by incoming Forum Chair, Tracy James. Thanks to the hard work and dedication of countless individuals, including but not limited to Program Coordinators Colbie Campbell and Liz Kraengel, the program was an unbridled success. Focused on all things contract negotiation and project start-up, it was fitting way to kick off the 2025-26 year of programmatic excellence. As usual, the lessons learned were many and varied but read on for my top 10 take-aways.

10. The Kentucky Derby is the most-watched and most-attended horse race in the United States. The iconic Louisville race has been run every year since its inception in 1875. Traditionally held the first Saturday in May as the first leg of the Triple Crown, the Derby is referred to colloquially as the "run for the roses" and "the most exciting two minutes in sports." While the Derby event itself is brief, the Churchill Downs is a bustling city of racing-related activity for most of the year and stables over 1,400 horses annually. Travis Stone (the voice of the Kentucky Derby) and Derby bugler, Steve Buttleman (who has been playing the "call to the post" at Churchill Downs for over 30 years) opened the Fall Meeting in grand style with a live demonstration of their skills and a little bit of Derby spirit.

9. Don't settle for business as usual when it comes to arbitrator selection. When it comes to arbitrator selection in complex disputes, business as usual may no longer cut it. At the Division 1 lunch Wendy Venoit and Sean Dillon spoke of newer, more robust tools which parties can avail themselves to ensure that all of the arbitrator candidates they are presented with have the expertise and calendar availability needed to effectively resolve the dispute at hand. The AAA-ICDR offers an Enhanced Arbitrator Selection process on large, complex cases, which allows parties to receive additional information before making their selections. Gone are the days of having to stealthily suss out the predilections of your potential panel...if the parties agree, they can submit questions for candidates to answer, ask the AAA to pre-screen candidates by certain criteria, or the AAA can arrange for all parties to interview the candidates by telephone or video call. 

8. "There is no such uncertainty as a sure thing." As exemplified by this quote by Robert Burns, certainty in contractual rights and remedies can often be elusive. Owners and contractors who drive hard bargains during contract negotiations to impose overbearing, one-sided contracts on downstream parties may be surprised to eventually find out that the "ironclad" provisions they negotiated (such as aggressive forum-selection clauses, indemnity and LD provisions) may not actually be enforced when conflicts arise. Whether contrary to statute, public policy, or the intent of the parties, overly aggressive contract provisions are never a sure thing. To make matters worse, the can make their beneficiaries overly complacent and overbearing in claims negotiations. To truly avoid conflict on your projects, the better course of valor, according to panelists William Geisen, Kristine Kubes, Matthew Mendoza, and Rob Ruesch, may be to deal reasonably (and communicate openly) with project participants.

7. Customize your payment provisions. From (a) contracting the right to stop work if unprocessed change order requests exceed a certain amount to (b) requiring that the owner deposit contested sums into an escrow account, there are many ways to modify payment terms to better suit a project's needs. John Slates and Lauren Catoe reviewed payment-related contracting considerations; and, while treatment of stored materials is never the first thing on anyone's mind, they cautioned attendees not to overlook the importance of requiring a contractor to label and segregate materials procured for their project. Otherwise, if the contractor in possession of the materials declares bankruptcy, the stored materials (even ones the Owner has paid for) could become part of the debtor's estate.

6. Pick your protection when it comes to performance security. Performance security mechanisms are risk-management tools designed to ensure that contractors fulfill their contractual obligations. While retainage and payment/performance bonds are perhaps the most frequently used tools to ensure a contractor and its subs will abide by their obligations, according to Nick Brooks, Patrick Kirby, and Kristen Sherwin, there are a variety of other tools that can operate to protect owners and avoid the potentially debilitating ramifications of contractor/subcontractor default on a project. The less utilized options include parent guarantees, Subcontractor Default Insurance, and Standby Letters of Credit. Whether and which of these tools are appropriate will depend on the nature, size, and complexity of the project.

5. Spearin may not be all that it's cracked up to be. Under the well-known Spearin doctrine, liability for defective design rests with the owner in traditional DBB projects; however, it may be explicitly contracted out by clauses that shift design verification duties to the contractor. This can be accomplished in a variety of ways such as by requiring the contractor to comply with performance specifications (rather than traditional prescriptive specifications), validate constructability or “fitness for purpose”, verify all dimensions and conditions, or assume responsibility for design adequacy. That said, panelists Laurie Choi, Kimberly Davison, and Kendall Woods offer this word to the wise for any owner attempting to divorce itself of design liability: courts require such disclaimers to be clear and specific. Ambiguous language can fail to override Spearin and may be presumptively void depending on the jurisdiction. And, if the owner drives too hard a bargain they may unwittingly draft themselves out of insurance coverage for future claims.

4. Closeout should start during pre-construction. This was the takeaway from panelists April Parrish, Sunu Pillai, and Max Taylor. Closeout should not be an afterthought as it is an important milestone in the life cycle of a project and for good reason; it signals the fulfillment of contractual obligations, enables release of final payment and retention, and provides Owner with the documentation it needs to operate and maintain the completed facility. It is a mistake to wait until the end of the project to start thinking about what will be needed for final completion. Including project closeout in a meeting focused on contract negotiation was done because “successful closeout hinges on having well-defined expectations from day one,” beginning with clear communication during scope reviews about what closeout deliverables will be required. Good documentation throughout the project, particularly in relation to change orders, will help ensure the closeout process proceeds smoothly.

3. Float like a butterfly, sting like a bee. Muhammad Ali was born as Cassius Clay in a racially segregated Louisville in 1942. He famously started to box at the age of 12 after his bicycle was stolen. From a place of powerlessness, he would eventually rise to become the greatest boxer and one of the most recognizable athletes the world has ever known. Ali had a penchant for creating rhymes (the bee/butterfly tagline being perhaps his most famous) and has been credited with being the first-ever rapper. Known equally well for his activism, Ali was a principled man of many talents. Attendees of the Forum's Fall Meeting received an insider's view into Ali's life at the Muhammad Ali Center, a museum dedicated to honoring and celebrating Ali's principles of peace, social responsibility, respect, and personal growth.

2. DEI is not dead. Despite mounting pressure and political scrutiny, not all companies are distancing themselves from their long-standing commitments to diversity, equity, and inclusion (DEI). Jimmie McMillian, the Chief Diversity Officer and Senior Corporate Counsel at the Penske Entertainment Group (which includes the Indianapolis Motor Speedway) shared what Penske is still doing to foster and promote diversity in the motorsports industry. In a compelling and inspirational Q&A with Sam Laurin, Jimmie spoke of his work for the Race for Equality & Change, an initiative to provide opportunities for underrepresented women and men in the motorsports industry and open-wheel racing. Beyond the initiative’s mentorship programs for students and bringing more diversity in racing, Jimmie hosts thousands of young people at the Speedway each year to get them excited about the sport.

1. "Building the best construction lawyers" necessitates that we address mental health. In a first-ever-of-its-kind presentation, the Forum invited Daniel Lukasik, New York State Judicial Wellness Coordinator, to present on the mental health challenges that face the legal field. Daniel shared the grim statistic that, according to a 2016 poll of 13,000 attorneys, it was discovered that 28% suffered from depression and 11.5% had experienced suicidal ideations, levels which are 4 times higher than the rates seen in the general population. According to the National Task Force on Lawyer Well-Being, poor mental health and well-being in the law are driven by a "parade of difficulties" which includes work addiction, sleep deprivation, job dissatisfaction, work-life conflict, incivility, a "narrowing of values so that profit predominates," and negative public perception. Even those lawyers (and law students) who do not develop mental illness or substance use disorders as a result of these forces still may not be thriving. One study suggested that attorneys feel depleted/exhausted, pessimistic towards their works, and ineffective about half of the time. These sentiments are precipitated by a combination of heavy workloads, long hours, demanding clients/colleagues, a feeling of lack of control, lack of recognition, toxic work environments, and fear of job loss. While there are tools each individual can use to improve their mental health (engaging in deep breathing exercises and expressions of gratitude to name a couple), legal organizations also need to acknowledge and mitigate mental health impacts to help create positive and healthy workplaces.

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Author and Editor-in-Chief Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law since 2009. 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.

Making the Case for Standing Construction Mediators on Every Complex Construction Project

Construction abandonments of private projects have hit an all-time high. Private developers scrapped more projects in May 2025 than in any other month on record, according to the latest data from Cincinnati based ConstructConnect.

The Project Stress Index is a measure of construction projects that have been paused, abandoned, or have a delayed bid date. “Abandonment activity has continued to rise, reaching its highest reading in over a year,” said Devlin Bell, associate economist at ConstructConnect. For the month of May 2025, private abandonments increased 62.6% over the month and are now up 92.2% year over year. That surge has led to the highest level of abandonments since ConstructConnect began tracking data in mid-2019.

On top of that, contractors are facing increased cost pressures as prices for key materials surge under the Trump Tariffs. “The acceleration in the year-over-year rate of increase is alarming, given that most of the tariffs announced so far were not in effect when these prices were collected…It is likely that contractors will be hit with substantial additional price increases shortly, unless the tariffs are rolled back,” said Ken Simonson, Chief Economist at the Associated General Contractors of America.

This level of stress sets the stage for a coming storm of epic disputes in the construction industry. Those that prepare for the storm by taking proactive steps to prepare will fare better than those that simply wait for the post storm clean-up efforts.

The Case for Standing Construction Mediation

Construction is a technical and complex industry. The best drafted construction contracts attempt to consider the complex and shifting sands in a construction project. Common issues such as change orders, cost overruns, changes of scope, building code challenges and even tariffs are now commonly dealt with. Even so, disputes are bound to arise and are part of the process. It is a process that is traditionally full of challenges and problems. The best players in the industry understand this difficult and challenging process and tend to be experts at getting to the finish line through the mine field.

However, even the best of the best will be challenged when the industry faces this tsunami of economic challenges. Record-breaking abandonments coupled with unforeseen cost increases have set the stage for an explosion of construction disputes. Construction projects under normal economic times are fraught with challenges and disputes. We are now treading in unchartered waters where tariffs and economic indicators are putting untold pressures on the industry. The normal number of disputes and complexity of the challenges have just become multiplied by exponential levels. 

A Standing Construction Mediator contracted on your project is your construction litigation insurance policy. No one would build a construction project without insurance. Insurance coverage is a fundamental part of any construction project. Insurance coverage often times continues for years after project completion. It would be unfathomable for anyone to build without insurance coverage. 

Why would you get into a project knowing that disputes will be exponentially higher than in previous years without a mediator on hand to help navigate the guaranteed problems and disputes.

Yet we build without mediation coverage. A Standing Construction Mediator is your insurance policy against the growing risk of construction dispute in today’s economy.

The Benefits of Standing Construction Mediation

A Standing Construction Mediator becomes an integral part of the construction project from the outset. They are brought into the project by the owner early in the process at the time of selection of Architects, Engineers and General Contractors. The Standing Construction Mediator (SCM) is proficient in the technical world of construction and is familiar with the fundamental areas of construction such as finance, architectural plans, engineering plans, building process, general contracting, sub-contracted trades, suppliers and building codes. The SCM will be written into all contracts with key parties and shall be ready to serve anyone who has a dispute that arises during the project. Time is of the essence in a construction project and delays caused by disputed change orders requests, disputed cost overruns disputes and delayed performance result in enormous costs to all the parties involved.  When these disputes cannot be resolved quickly and efficiently, they morph into legal battles which often times get put onto the back burner to be resolved through litigation after completion of the project. Meanwhile, the dispute at hand will cause costly delays, mechanics lien issues, stop orders, and cash flow challenges for all affected parties.

With a SCM involved in the process such disputes can be resolved immediately because:

1) The SCM is familiar with the full scope of the project having reviewed all key construction documents and all key player contracts (GC, Subs, Suppliers, Architects, Engineers and related professionals). 

2) The SCM is included in all contracts along with the process for dispute resolution during the course of construction. 

3) The SCM makes themself immediately available to resolve all course of construction disputes either by in person at the construction site or via zoom.

4) The dispute is resolved immediately and before it has a change to grow from spark to fire.

5) There is a balance of power between all parties allowing for equal access to dispute resolution during the construction process.

An Example of SCM at Work

A tile subcontractor is hired by the General Contractor (“GC”) on a hotel project to supply and install tile specified according to plans. The installation schedule is moved back six months due to construction delays caused by building inspection corrections. The tile subcontractor was informed of the six-month delay and, as a result, does not purchase the tile for another 5 months to preserve cash flow. Five months later, tile subcontractor is informed by tile supplier that there is an increase of 20% on the tile due to tariffs and increased shipping costs and that the tile is now on back order and will not be available for another 4 months. The additional 20% charge in tile will cost the tile subcontractor $50,000. The tile subcontractor also loses another job where it could have made $500,000 profit which it had scheduled to start in six months. The tile subcontractor informs the GC that there will be: 1) a $50,000 change order; 2) 4 months further delay; and 3) a consequential damage claim for its lost $500,000. 

The GC refuses the change order of $50,000 stating that the tile subcontractor should have purchased the tile earlier. The GC then informs tile subcontractor that it must start in six months, and that the extra 4-month delay is not the GC’s problem. The GC sees the $500,000 lost profit claim as an insult and is now more inclined to fire the tile subcontractor, hire another sub, and hold the tile subcontractor liable for additional costs involved.

Without an SCM, this would have a classic end with the tile subcontractor walking off the job and ending the relationship with this GC. The GC would hire a substitute tile subcontractor at a higher cost resulting in his presenting the owner with a change order resulting in added friction or possible litigation between the owner and GC. The GC who played hard ball with the tile subcontractor would now find himself at the mercy of the owner who would tell the GC he was hired to manage all subs and suppliers and that he should have verified that the tile was purchased on time instead of relying on a tile subcontractor and thus was not paying for the additional cost of tile or the new tile subcontractor costs.

With an SCM, the tile subcontractor would have called the mediator and requested an immediate mediation of the matter. The SCM is on call for precisely this type of dispute and would immediately rise to the challenge. A mediation would be immediately scheduled and either through on-site visits, phone calls or zoom meetings, a successful mediated settlement would result. Solutions agreed to, delays minimized, relationships preserved, and the project continues with a reasonable settlement of the dispute. 

Why not simply bring in a traditional mediator to address such issues. Why the need for an SCM?

1) Expert construction mediators are normally booked out for 6-12 months.

2) General mediators with no construction specialization are less well equipped to deal with such technical disputes and are usually not immediately available either and can be cost prohibitive. 

3) The SCM is precisely contracted for this scenario and is already familiar with the scope of work and all contracts and is “on call” to resolve these types of disputes.

What is the Process for Hiring an SCM?

An SCM is typically brought into the project before any key contracts are signed. An initial flat fee is paid to the SCM for review of the scope of work and for involvement in contract review and SCM contract terms.

Next, the SCM process is included in all contracts between the parties with clearly defined steps for mediation of disputes arising during and after project completion. A fixed hourly rate is set for the SCM services which is split evenly among the interested parties.

The parties are introduced to the SCM early in the process and are provided all the information necessary for them to understand how they can get the SCM involved to help mediate and resolve disputes as they arise.  Should mediation not resolve the dispute, the parties are free to continue the traditional trajectory towards litigation (or arbitration).

Given the recent statistics which will give rise to enormous construction disputes, it is now more important than ever to have the insurance of a SCM on retainer to push projects through the steps of completion rather than to the steps of the courthouse.

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Author Joel Bertet provides mediation services focused on resolving disputes in the construction and real estate sectors. With 30 years of experience, Joel is an established construction lawyer, legal advisor, licensed General Contractor, and Licensed Real Estate Broker. Joel can be contacted at joel@resolvebertet.com.

Dispositive Motions in AAA Construction Arbitration: Why You Should Think Twice

When involved in a construction arbitration under the AAA rules, the urge to file a dispositive motion can be strong. After all, wouldn't it be beneficial to eliminate your opponent's case early and save the time and expense of a full hearing? However, before drafting that motion to dismiss or motion for summary judgment, take a moment to consider if it's truly the best strategic choice.

The AAA's Measured Approach to Dispositive Motions

The AAA Construction Industry Arbitration Rules adopt a notably cautious stance toward dispositive motions. Rule R-34 states that arbitrators may allow such motions "upon prior written application," but only after evaluating "the time and cost associated with the briefing of a dispositive motion." The rule explicitly mandates that arbitrators consider whether permitting the motion aligns with "the goal of achieving an efficient and economical resolution of the dispute."

This language isn't accidental as it reflects the AAA's recognition that dispositive motions often do more harm than good in the arbitration context. Unlike federal courts, where summary judgment motions are common, arbitration's informality and focus on efficiency influence how they are handled.  The rule’s design makes dispositive motions the exception rather than the rule.

The Two-Step Hurdle: Permission First, Then Success

Here's what many attorneys miss: filing a dispositive motion in AAA construction arbitration is actually a two-step process. First, you must get the arbitrator's permission to file the motion. Second, if granted leave, you must actually win on the merits. This creates a double hurdle that significantly reduces your chances of success.

Step 1: Getting Permission

The arbitrator will assess whether your proposed motion promotes efficiency and cost-effectiveness. Since construction disputes often involve complex facts, site conditions, performance standards, and technical specifications, arbitrators are usually doubtful that legal motions alone can resolve disputes without a hearing.

Step 2: Winning the Motion

Even if you obtain permission to file, remember that arbitrators are instructed to resolve disputes based on the evidence presented. Most construction disputes involve mixed questions of law and fact that are difficult to settle decisively.

Know Your Arbitrator: Background Matters

The success of any dispositive motion strategy heavily depends on understanding your arbitrator's professional background and approach. AAA construction arbitrators typically fall into several categories:

• Former judges and retired judges: Judges may be more open to dispositive motions because they have dealt with them regularly during their judicial careers. However, they also recognize that construction cases rarely lend themselves to quick resolution based solely on legal arguments.
• Construction industry veterans:  Engineers, architects, project managers, and construction executives who serve as arbitrators often prefer to "get into the weeds" of technical issues. They may see dispositive motions as an attempt to sidestep the substantive construction issues they are specially qualified to assess.
• Construction Lawyers: Attorney-Arbitrators with construction backgrounds understand both the legal framework and the practical realities of construction projects. They may be more open to considering dispositive motions but will carefully scrutinize them for their potential to resolve the dispute.

The Practical Problem: Most construction arbitrators became arbitrators precisely because they want to resolve disputes on their merits, not on procedural technicalities. Filing a dispositive motion may suggest to the arbitrator that you're attempting to avoid the substantive issues—the very issues the arbitrator was selected to decide.

The Limited Scope for Success

Dispositive motions are most effective when they tackle pure legal questions that don't require factual development. In construction arbitration, such cases are uncommon.

Where Dispositive Motions Might Work:

• Clear contractual time bars or notice requirements
• Unambiguous limitation of liability clauses
• Statute of limitations defenses with undisputed facts
• Jurisdictional challenges to the arbitrator's authority

Where They're Likely to Fail:

• Disputes over the scope of work or changed conditions
• Performance and quality issues
• Delays and disruption claims
• Most breach of contract allegations
• Professional negligence claims

The reality is that most construction disputes involve site-specific conditions, complex sequencing issues, and performance standards that require factual development. These cases don't lend themselves to early legal resolution.

The Cost-Benefit Analysis: A Cautionary Tale

Dispositive motions in arbitration are expensive gambles with poor odds. Consider the costs:

• Time Investment: Researching, drafting, and briefing a dispositive motion demands significant attorney time. Your client will pay for this regardless of whether the motion succeeds or fails.
• Arbitrator Fees: Under Rule R-49(c), arbitrator fees and expenses "associated with a motion or an application to make a motion may be assessed" against the losing party. If your motion fails, you could be responsible for paying not only your own fees but also the arbitrator's costs for reviewing and deciding your motion.
• Delayed Resolution: Even a successful motion may only narrow the issues, not resolve the entire case. The time spent on motion practice could have been used moving toward a hearing date.
• Relationship with Arbitrator: A poorly conceived motion may damage your credibility with the arbitrator. Remember, you'll be appearing before this same arbitrator throughout the proceedings.

The Strategic Alternative: Focus on Case Management

Instead of filing dispositive motions, consider these more effective strategies:

1. Narrow the Issues: Collaborate with opposing counsel and the arbitrator during preliminary hearings to identify and limit the actual disputes.
2. Streamline Discovery: Use Rule R-24's information exchange procedures to build your case efficiently without heavy discovery disputes.
3. Leverage Technical Expertise: Focus on developing expert testimony and technical evidence that appeals to the arbitrator's construction background.
4. Conclusion: Choose Your Battles Wisely

The AAA Construction Rules' cautious stance on dispositive motions reflects decades of experience with what works and what doesn't in construction arbitration. While the appeal of an early knockout move is understandable, the reality is that these motions usually consume resources without providing proportional benefits.

Before filing that dispositive motion, ask yourself:

• Is this genuinely a straightforward question of law that can be settled without factual development?
• Will this motion truly benefit my client's interests, or am I merely trying to follow the familiar patterns of federal court practice?
• And most importantly: Would my client's money be better spent preparing for a merits hearing where we have a real chance to win on the substance of our case?

Construction arbitration works best when it concentrates on its strengths: providing efficient, expert-driven resolution of complex technical disputes. Arguing over legal technicalities often detracts from that goal. Choose your battles wisely and save your resources for the issues that truly matter.

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Author Lisa Colon is a partner at Saul Ewing LLP with over 25 years of construction law experience representing developers, contractors, and subcontractors. As both an arbitrator and certified mediator, Lisa brings a unique perspective from both sides of the table in construction ADR proceedings. She regularly serves on AAA construction arbitration panels. Licensed in Florida and New York, Lisa focuses her practice on complex construction disputes, contract matters, and alternative dispute resolution. She can be reached at lisa.colon@saul.com.

Hiring the Right Expert For Your Construction Dispute

Construction projects are complex undertakings, typically involving multiple parties, intricate contracts, and significant financial investments. With so many moving parts, it’s no surprise that disputes often arise over delays, defects, payment issues, or contract interpretation. When these disputes escalate to arbitration or litigation, the technical and specialized nature of construction means that lawyers and judges often need help understanding the facts. Hiring the right expert can make all the difference – but where do you start?

Do I Really Need an Expert?

Construction disputes are complicated. They often hinge on technical details that raise questions requiring specialized knowledge to answer. Without expert analysis, it can be difficult to establish what actually happened, who is at fault, and what damages are appropriate.

Experts bridge this gap by providing objective, professional opinions based on their training and experience. A good expert can explain complex issues and present them in a manner that is understandable to non-specialists. Their advice, reports, and testimony can be pivotal in determining the outcome of a case.

Types of Experts 

The type of expert needed depends on the nature of the dispute. Here are six of the most common:

1. Construction Delay Experts:

These professionals analyze project schedules, identify causes of delays, and determine whether those delays were excusable or compensable. They often use critical path method (CPM) scheduling to provide a clear picture of how and why a project fell behind.

2. Cost Estimators and Damages Experts:

When the dispute involves claims for additional costs or damages, a cost estimator or forensic accountant can assess the validity of those claims by determining the cost of labor, materials, equipment, and other expenses. They analyze invoices, change orders, and project records to determine an accurate project cost.

3. Architects and Engineers:

If the dispute centers on design defects or construction quality, architects and engineers can assess compliance with building codes and standards, evaluate structural integrity, and determine the cause and extent of damages due to structural failures.

4. Construction Safety Experts:

In cases involving accidents or injuries, safety experts can review site conditions, safety protocols, and compliance with OSHA or other regulations to determine if proper procedures were followed.

5. Materials and Geotechnical Experts:

Sometimes, disputes arise from issues with materials (like concrete, steel, or roofing) or site conditions (such as subsurface soil stability). Experts in these fields can analyze how materials including soil or rock behave under various conditions, can test materials, review lab reports, and provide opinions on whether materials or site prep contributed to the problem.

6. Construction Contracts Expert:

These professionals interpret contract documents, evaluate performance and compliance, and assess scope changes, delays, or additional costs related to construction projects.

Five Ways Experts Can Help Resolve Construction Disputes

1. Clarifying Technical Issues:

Experts break down complex technical matters into clear, understandable explanations. This is invaluable for judges, juries, and the parties involved.

2. Providing Credibility:

A well-qualified expert lends credibility to a case. Their objective, professional opinion can carry significant weight in negotiations, mediations, and at trial.

3. Supporting or Refuting Claims:

Experts can support a party’s position or challenge the opposing party’s claims. For example, a delay expert might show that a delay was caused by unforeseen site conditions rather than contractor negligence.

4. Assisting With Settlement:

Many construction disputes are settled before trial. Expert reports can help parties and their counsel understand the strengths and weaknesses of the case, facilitating more informed settlement discussions.

5. Testifying in Court or Arbitration:

If the case does not settle, experts can testify as witnesses, explaining their findings and opinions to the judge or jury.

Timing of Expert Involvement

Early involvement of an expert is generally advantageous for several reasons:

• Early Case Assessment: Experts can assist in evaluating the merits of a case before significant resources are committed to litigation.
• Preserving Evidence: Construction sites change quickly. Early expert involvement allows for site inspections, sample collection, and documentation of conditions before evidence is lost.

· Discovery and Depositions: Expert input can allow for more precise and effective discovery requests and deposition questions, ensuring the information needed to support a case is obtained.

• Facilitating Settlement: Early expert reports can encourage settlement by clarifying the facts, narrowing the issues in dispute, and lending credibility to claims or defenses.

Delaying the retention of an expert can result in missed opportunities to gather critical evidence or allow the opposing party’s expert to shape the narrative.

Conclusion

Construction disputes are a high-stakes, technically demanding arena. The effective use of qualified experts can be critical for resolving disputes efficiently and effectively. For litigators, involving experts early in the process provides the technical insight and credibility needed to achieve the best possible outcome for clients.

Engaging experienced construction litigation experts at the appropriate stage can help navigate the complexities of a case and facilitate a successful resolution.

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Lauren McGinley is a member of Fox Rothschild’s Litigation Department. For more information, please contact her at lmcginley@foxrothschild.com.

This article is provided for informational purposes only—it does not constitute legal advice. Readers should consult legal counsel before taking action relating to the subject matter of this article.

Meet the Forum's In-House Counsel: JOHN KIMON YIASEMIDES

Company: AYA Consulting

Email: Kimon.Yiasemides@AYAConsultingllc.com

Website: http://www.ayaconsultingllc.com

Law School: University of Maryland 

States Where Company Operates/Does Business: Based in the Washington DC area, operates globally

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Q: Describe your background and the path you took to becoming in-house counsel.

A: My background is unique; one that spans many aspects of construction management and construction law. At a recent conference someone referred to me as an anomaly, which I took as a compliment, although I would prefer to refer to myself as a Renaissance Man of Construction Law! My background in construction began with my degree in Construction Management from the University of Florida’s ME Rinker School of Building Construction. Thereafter, I was hired by Centex’s commercial construction division to manage large-scale commercial and educational projects in central Florida. After six years with Centex, I obtained my Juris Doctor from the University of Maryland’s School of Law. In the year prior to law school, I worked as an expert witness with Hill International in Washington D.C. While I also spent some time working for the law firm of Ober Kaler in Baltimore during law school, I decided that what I enjoyed the most was the expert work where I could put the pieces of the puzzles together using forensic analysis. After law school and passing the bar in Maryland, I was able to put both aspects of my education to work by working as an expert and filling the role of in-house counsel for Warner Construction Consultants, Inc. where I worked for 11 years. That experience, along with four more years working at Navigant/Ankura, helped round out the experience that I now employ as a consultant. 

Q: Where do you focus your work? Do you have a specific geographic area?   

A: I now work anywhere in the world. For example, within just the last year or so I worked on cases from Australia, Europe, the middle-east, and across the US. In fact, I have had projects in 6 of the 7 continents over the years (you can probably guess where I haven’t yet had a project). I often explain that I have worked on everything from the Burj Khalifa (the tallest building in the world) to a ‘Naked Pizza’! (It was a local make-your own pizza place, don’t get too excited). But, the in-house type of work I perform is all domestic. 

Q: What kind of work do you do?   

A: The work I do now is in several different capacities. At the most basic level, I can help projects that are struggling with difficult scheduling issues that need a hand navigating large delay impacts while the project is underway. If the dispute needs a third-party expert for forensic schedule analysis or damages assessments, I can also help in that capacity. But I also help companies who need supplemental in-house counsel services when their workload has become too great (for any variety of reasons). Working in these various capacities provides me a way to utilize all of my unique experiences and background. This is why I love working as an independent expert, as I have been doing for the past five years now.

Q: How and when do you interact with outside counsel? In what kinds of matters?   

A: In addition to the roles I just described, I can be of assistance with outside counsel when there are discovery management issues, helping them navigate the best way to find, organize and manage key documents, some of which can only be viewed with specialty software. I can also help interpret, communicate and navigate the construction landscape in a way that helps accelerate their understanding of the case. I have been on both sides: defending depositions and being deposed, preparing discovery and reviewing discovery, and writing contracts and reviewing disputed contracts. This unique experience can provide valuable perspective. 

Q: How can outside counsel best serve a construction company? 

A: I think the best outside counsel are those who can listen and understand the issues in the case and get their hands around the facts so that they can put forth the best arguments. I always say, “the party most in command of the facts most often wins.” When I am working as a third-party expert witness, if outside counsel can hire me early, I can help them get in command of those facts. But if they wait until a month before the expert report is due, it can be a real struggle for us both. Having said that, I would say a proactive lawyer with a clear plan of attack and foresight to know what she will need is optimal. For example, if I am hired before discovery starts, it doesn’t mean she will have me working full-time right away. Rather, I will likely spend a few hours on the matter to provide input on the discovery process (or anything else she needs input on) in order to help with her game-plan moving forward, which is often well worth it in the end.

Q: What qualities/characteristics do you think are helpful to have in a mediator or arbitrator? 

A: Whomever it is, the person must be properly prepared. I have encountered, more than once, hearings in which I am explaining facts in the case on direct testimony, and I can just tell that the arbitrator(s) has not read and does not understand the pleadings and pre-trial briefs in the case. After all the efforts the parties spend in distilling the case in their complaint and pre-trial or mediation briefs, to then see that it was not carefully read and re-read, is such an inexcusable waste. I also always recommend picking an arbitrator or mediator with a construction background, such as a former or seasoned construction litigator. This facilitates their understanding when describing the scenarios of what happened as there is generally no time to bring them up to speed on construction terms and practices. 

Q: What are some characteristics of the best outside counsel you have encountered? 

A: The best attorneys I have worked with are those who at their core are concerned about helping their client reach the best outcome. Sometimes that means reaching an early settlement, while other times it means taking the case all the way to trial. But a firm conviction to making sure the outcome is in the client’s best interest is key. I don't think outside counsel that argue points just for the sake of arguing is an effective or palatable strategy to most in-house counsel. And, I would also say, be creative in getting to yes!

Q: What are some of your interests or hobbies? 

A: I have many interests, or I wouldn’t be able to call myself that Renaissance Man, would I? I would say on top of my list are coaching soccer and other sports for my boys and jamming with them as a jazz trio (still working on that one; I play saxophone, my oldest plays trumpet and my youngest is a drummer…it’s a start). I also enjoy skiing and other recreational sports to stay fit, and someday when my nest is empty, I’ll return to volunteer somewhere again like Habitat for Humanity.

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Assistant Editor-in-Chief Jessica Knox is a Partner in the Minneapolis office at Stinson LLP. She represents owners, general contractors, and subcontractors in litigation disputes. Jessica can be contacted at jessica.knox@stinson.com. 

Message from the Chair: Joe Imperiale (Volume I)

I am honored to take over as the Division 1 Chair from my friend, Kelsey Funes. Kelsey was an outstanding Chair and continues to do great work for the ABA Forum as she assumes her new position on the Governing Committee. 

For those of you who don’t know me, the following is a little about my background. I grew up in the Philadelphia area, where I still live and practice. I am the Managing Partner of the Philadelphia office of Troutman, Pepper and Locke, and am a partner in the firm’s Construction Practice Group. I have been at the firm (or its legacy firms: Pepper Hamilton and Troutman Pepper) my entire career and have always focused my practice exclusively on construction. For over 20 years I have been lucky enough to handle construction disputes all over the country and world, associated with a range of projects on behalf of owners, contractors and designers. It has been exciting to be part of my firm’s growth, and with over 50 fully dedicated construction lawyers, I have a great group of colleagues to work with on construction matters. 

My wife Lydia and I have three children. My son is a high school junior and my daughters are in 8^th grade and 4^th grade respectively. My kids are busy with various sports and other activities so when not working, I am taking them one place or another. 

I attended my first meeting Forum meeting 20 years ago in San Diego and have been attending ever since. Because my practice is focused on litigation, I gravitated to Division 1. A little over 10 years ago I decided I wanted to become more involved and reached out to then Division 1 Chair, Nick Holmes. It was one of the best professional decisions I ever made. Nick embodies the Forum. He made taking on “more work” in a volunteer capacity equal parts fun and rewarding. And Nick introduced me to a group of Division 1 Forum leaders, who are friends to this day, which include Tony Lehman, Tom Dunn, Cassidy Rosenthal, Kelsey Funes, Rob Ruesch, Jason Rogers Da Cruz, and Scott Griffith. I served on the Division 1 Steering Committee when Nick, Tony, Tom, Cassidy and Kelsey were each chair, all of whom advanced Division 1 to make it a part of Forum that serves hundreds of construction lawyers that practice in litigation, arbitration and dispute resolution. The current Division 1 Steering Committee is comprised of Catherine Delorey, Katie Kohm, Marissa Downs, Jessica Knox, Jade Davis, Katie Anand and Brett Henson.  I look forward to working with this talented group as we continue the great work of Division 1.  

I’m looking forward to seeing many of you in Louisville at the Forum’s Fall Meeting. We will be kicking off the meeting with a 2-hour planning retreat on Wednesday morning (September 2) at 10 am, which any Division 1 member should feel free to join. 

On Wednesday afternoon we are presenting another fantastic practicum, Negotiating the 10 Most Common Contract Provisions to Minimize Risks and Avoid Disputes, in which Harper Heckman, Chris Dunn and Matt Gillies will tackle the topic from the owner, contractor and designer perspectives. 

On Friday (September 5), our luncheon presentation is "Selecting the ‘Right’ Dispute Resolution Procedure" led by Creighton Sebra and Sean Dillon, which should not be missed by anyone who drafts contracts or handles disputes. 

Finally, on Thursday evening, we will have a great time socializing with Division 1 friends new and old at Barrels & Billets tasting room. A special thanks to FTI Consulting, and friend of Division 1 Eric Schatz for sponsoring the event. For tickets, contact John Gazzola (John.Gazzola@troutman.com).

If you are attending the Fall meeting, I invite you to join us for all of these outstanding activities.

I look forward to working with all of you and encourage anyone with program ideas and suggestions to reach out to me.

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Author Joe Imperiale has dedicated his practice exclusively to the construction and manufacturing industries for 20 years. He represents owners, EPC contractors, construction managers, general contractors, and subcontractors in disputes on a wide array of construction projects, and can be contacted at Joseph.Imperiale@Troutman.com.

Perspectives from Pioneers: Kenneth C. Gibbs

Pioneers are not only skilled practitioners, but boundary-setters. Those who have helped define what is possible in their field. Their voices offer both experience and foresight. In this inaugural edition of Perspectives from Pioneers, I asked Kenneth C. Gibbs, Esq., widely regarded as the Dean of Construction Dispute Resolution, to share insights from his extensive career mediating, arbitrating and conducting neutral evaluations in multi-million-dollar construction, energy, insurance and other business disputes. Ken, a pillar in the construction industry, has successfully mediated more than 2,500 cases and arbitrated over 200 cases in 25 states involving bridges, dams, arenas, highways, subways, tunnels, airports, hospitals, hotels, office buildings and other major projects.

Globally, you are considered a pillar of the construction mediation and arbitration industry. How did you achieve this?

Being considered a “pillar” or a “pioneer” of the construction ADR community is a bit embarrassing for me, as I still consider myself a simple country lawyer.

I’ve been extremely fortunate in my career. In 1974, upon graduation from law school, I was immediately involved in, at that point, one of the largest construction disputes in California history—the construction of the Cedars-Sinai Medical Center in Los Angeles—where I was the co-first chair in the representation of the general contractor and its subcontractors. Immediately following that, I led a team to a successful result involving a major construction project at the San Francisco Airport. So, at 32 years old, I was an “expert” construction litigator with a growing reputation.

Through promotional efforts and word of mouth, the firm that I started in 1978 with two attorneys quickly grew; by 1988, we had about 40 attorneys. By that point, I had attracted 5 of the 10 largest contractors in California as clients and had also attracted a large number of public agencies, including counties, cities and various school, water and other districts. Meanwhile, I co-authored a text titled California Construction Law, which was cited in several court cases. I traveled around the country giving seminars on construction law with, of course, an emphasis on California.

Because of these efforts, by the 1990s I had acquired a reputation as one of the top practitioners of construction law in the country, and my firm had become the largest “boutique” law firm specializing in construction west of the Mississippi.

Throughout my career, I had always dabbled in arbitration. I was on the large and complex construction panel of the American Arbitration Association (AAA) and was one of AAA’s “go-to guys” in California for high-value construction cases. Beginning in the late 1970s, I did about four arbitrations per year and received positive reviews. By the late 1980s, it became clear that mediation was emerging as an efficient way to resolve complex construction disputes. In the late ’80s and into the ’90s I appeared as an advocate, representing clients in many construction mediations, and I very much enjoyed the process and the results I obtained. There were fewer mediators back then, and fewer still who understood construction law, so my “mentor”—unbeknownst to him—was the legendary Coley Fannin of JAMS. He came across as knowledgeable but relaxed, and just watching him in action taught me a lot. He drilled into my head that “the first thing you’ve got to do is to identify the impediments to resolution.” That line has stuck with me ever since.

By 1999, I decided that I really wanted to shift the direction of my career, so I sent a message to every attorney I knew around the country announcing that I was going to do ADR full time. I started off doing two mediations per month, which rather quickly became two mediations per week.  This snowballed to the point where I was doing three or four mediations per week, as well as arbitrations. I joined JAMS in 2007, and I’ve now handled mediations and arbitrations in 25 states. 

Do you have any advice on how to become a knowledgeable and highly respected construction neutral?

I think there are three keys to becoming a highly respected construction ADR neutral: subject matter knowledge, demeanor and the ability to read the room.

Not only does the construction industry have its own jargon and ways of doing things, but so too do advocates who come before you. Construction projects, and the disputes that can arise from them, are complex; it is essential that that neutral have sufficient subject matter knowledge to separate the wheat from the chaff. Knowledge of scheduling and cost principles, together with knowledge of applicable case and statutory law, is essential, whether in arbitration or mediation, for the neutral to get to the heart of a matter.

Another commonality between arbitration and mediation is the neutral’s demeanor. Calmness and control are needed in both to guide the process in an efficient and effective manner. I make every effort to listen and not show emotion or tip my hand when hearing disputes. In fact, in mediations, I generally start by going room to room to hear what the parties and their counsel have to say, without injecting too many of my thoughts as to the merits. I do ask “devil’s advocate” questions to find out information and demonstrate that I know the issues of the dispute, but a calm and thoughtful demeanor is necessary to gain the trust of all concerned.

Finally—and this is something that cannot be taught very easily—during mediations, a neutral needs to read the room by listening to what is said and noting what is not said, and even reading body language. Anyone can shuttle offers and counteroffers back and forth, but it takes highly skilled neutral to evaluate the true positions of the parties and figure out what will work and what won’t. If I have strength as a mediator, it is derived from my ability in this regard.

In the ADR community, it is generally accepted that not every mediator is a great arbitrator and, likewise, not every arbitrator is a great mediator. Despite this, you have managed to master both. What are the commonalities and differences in the practices? What are your suggestions to those who want to pursue both practices?

I completely agree with the proposition that not every mediator is a great arbitrator and not every good arbitrator is a good mediator.

Although there are commonalities in both practices, I think that there are also some different skill sets that come into play in arbitrations versus mediations. The general common skills in mediation and arbitration are subject matter knowledge, the ability to weigh the facts and know the law and the ability to listen.  The additional general arbitration skills are general knowledge of rules of procedure, award writing, and firm control of the process so that the matter is heard timely and in an efficient manner. The additional general mediation skills are risk evaluation, keen people discernment and observation, humility, and empathy.  These skills, while important in mediation, are less important in arbitrations.  The person who is able to blend the skills of both practices as well as the embrace the differences based upon the type of proceeding is more likely to find success as a both mediator and an arbitrator.

While generalities are always dangerous, I have found that judges who come off the bench usually make better arbitrators than mediators, perhaps because their adjudication techniques have been honed over years of hearing cases. I have also found that mediators tend to be more generalists and may not have practiced construction law.

I’ve found that lawyers who were in the trenches make the best mediators of construction disputes because they can recognize the strengths and weaknesses of the parties’ positions, having been there and done that. I think that is one of my strengths, and I think that it is a necessary element of being a top-notch construction mediator. There is no substitute for subject matter knowledge, and while a construction arbitration can certainly be handled by an individual—such as a former judge—who is used to hearing and evaluating arguments, the traits of a mediator in effectuating resolutions are much more subject matter oriented. 

There is no real need to read people in arbitrations other than to establish the veracity of the testimony they give. In mediations, it’s my opinion that reading people is one of the chief skills necessary. So, while there is crossover regarding evaluating the merits of a given matter, there is a different skill required to have the parties recognize the risks they run if the case goes to trial. This risk evaluation, coupled with the art of convincing the parties to realistically evaluate their risks, is the key to the mediation process and the key to being an outstanding mediator.

In your practice, what do you see evolving due to technology, supply chain issues, global stability, etc.? How are the industries in which you practice changing based upon the world today, and how is the ADR community adjusting to these changes?

ADR has certainly evolved in the last six years. In 2019, the thought of conducting virtual mediations and arbitrations via Zoom or other applications was way out there, and almost all ADR hearings were conducted in person. Today, more than 50% of mediations conducted by JAMS are virtual, and even those conducted in person usually have some participants appearing virtually in a hybrid hearing. Interestingly, my personal practice seems to bucking the trend. I estimate that 75% of my mediations are conducted in person, probably because the stakes of my mediations are usually very high.

Another major factor that is going to change the way ADR, and particularly arbitrations, proceeds is the introduction of AI into the process. I’m not an expert, but there is no doubt that AI will play a growing role.

Supply chain issues, tariffs and the global economy will continue to have an impact on construction projects and disputes arising therefrom. Whether an event is force majeure or a delay chargeable to a particular party in the construction process is certainly going to be up for debate as we go through the uncertainties of the current environment.

As you reflect on your body of work and your stellar career, what are some of the pivotal or significant moments, and what did you learn from those moments?

My 52-year career can be divided almost exactly in half: the first 26 years representing clients on major construction projects and the second 26 acting as an arbitrator or mediator of claims regarding construction. I had great luck and attracted some wonderful general contractor and design professional firms to represent early in my legal career. I formed a strong team, which included scheduling and forensic accounting firms, and we were successful on many projects, including major hotels, hospitals, prisons, office buildings, wastewater treatment plants and transportation projects. As my career progressed, I was given the opportunity to represent virtually every county in Southern California and at least 10 major cities around the state. One of my most memorable assignments was representing the Metropolitan Water District of Southern California when it constructed the seventh-largest earth fill dam in the world. My takeaway from all that work is to build a strong team, delegate work appropriately and always have your client’s best interest in mind.

It's hard to pick out one or two matters that I’ve mediated or arbitrated, but I take great pride in having helped resolve issues relating to airport construction in Los Angeles, Seattle, Salt Lake City, Dallas-Ft. Worth and New York. Additionally, I’ve enjoyed working on subway and light rail projects in New York, Los Angeles, Houston, Denver, San Francisco and Seattle. The saying “A mediation is not an event; it’s a process” comes to mind. All of the matters listed above took multiple efforts over a significant number of sessions. The lessons learned can be summarized by the thought that a mediator should never give up trying and should always follow up to see if circumstances have changed or evolved and may allow for a settlement.

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Author and Interviewer Lisa D. Love, Esq., FCIArb. is an accomplished arbitrator, mediator and neutral evaluator with JAMS who brings to her work as a neutral extensive experience as a complex commercial transactions attorney. Ms. Love has served as a neutral in a wide range of complex commercial transactions and legal disputes, including those focused on investments, corporate finance, securities, mergers and acquisitions, construction and infrastructure projects and development, energy, life sciences, licensing and technology transfers, franchises, commercial real estate, antitrust, government and public agency, and corporate governance matters.