method with a checkmark choice of arbitration or court . Id . See also The History of AIA Contract Documents
Fast forward 20 years and binding arbitration remains a commonly used dispute resolution choice for complex construction contracts , including , increasingly , public projects . The credit for this resilience goes to rigorous governing organizations ; experienced construction lawyers ; and qualified construction specific arbitrators . This article addresses just a few of the advantages that arbitration can offer for construction industry disputes .
QUALIFIED , KNOWLEDGEABLE PANELISTS
The selection of experienced construction industry arbitrators is the most important early decision that litigators and their clients must make . No trial lawyer would underestimate the importance of jury selection , and arbitrator selection is even more important . Unlike judges , who are required to be knowledgeable about many different types of legal disputes , construction industry arbitrators are specialists . All of the primary administrative organizations maintain lists of qualified construction arbitrators who are often designated specifically for large complex cases . The AAA / ICDR , for example , maintains a roster denominated the “ Mega Case ” Panel , comprised only of experienced construction professionals suited to large cases and complex issues . In international arbitration conducted under the International Chamber of Commerce ( ICC ) Rules , the International Court of Arbitration selects from internationally qualified arbitrators . Contracting parties will often anticipate the importance of arbitrator selection by specifying in the contract arbitration provision the panel from which arbitrator candidates will be drawn . Alternatively , the contract may provide that each party select an arbitrator and those two pick a third with party input .
A super qualified panel insures that the proceedings run smoothly and efficiently . No “ education ” is required on construction law and issues , as would be necessary with a jury or even a judge . In large cases , a panel of three arbitrators is the norm , also helping to avoid aberrant or unpredictable results .
CREATIVE OPTIONS FOR PROOF PRESENTATION
The traditional format for presenting proof in court is wasteful and cumbersome in many complex construction cases . Parties and arbitrators want to see the specifics of the issues and get directly to the key points . Evidentiary skirmishes are largely avoided in arbitration . Arbitration gives the parties huge leeway to agree to alternative formats that are more efficient and informative to the ultimate decision . For example , organizing the hearing by topics , instead of a strict order of proof ( fact day ; expert day ; damages day ); “ hot tubbing ” of experts where the experts on a specific topic present together highlighting their agreements and differences ; presentation of some or all of the direct testimony by witness statement or highlighted depositions ; virtual testimony thus avoiding travel and transaction time for witnesses ; proffered arguments by counsel ; joint damages statements juxtaposed in an excel format ; briefs or outline demonstratives in lieu of opening or closing argument ; “ chess clock ” timing where each party ’ s time is measured and divided equally within a conscribed hearing schedule . These techniques , and others , add to the efficiency of the process and are limited only by the creativity and cooperativeness of counsel .
STREAMLINED DISCOVERY
Although the occasional arbitration provision will provide specifically for discovery ( even adopt the Federal Rules of Civil Procedure ), most contracting parties choose arbitration for a more streamlined process than court discovery , because construction projects are heavily documented central depositories of drawings , specifications , electronic schedules , payment records and project related communication .
Established law supports the view that there is no “ right ” to discovery in arbitration . See generally A Constitutional Right To Discovery ? Creating and Reinforcing Due Process Norms Through the Procedural Laboratory of Arbitration
The discovery process will be largely governed by agreement of the parties / counsel and discretion of the arbitrators . Most commonly , document exchange is conducted , including ESI . Depositions , however , are much more limited than in court proceedings , and most arbitrators to permit numerous depositions , even if the parties want them . Experts are essential in construction cases , and reports will usually be exchanged , but expert depositions are often limited . If the thought of limited discovery is unnerving to some lawyers , it should help to go back to point # 1 . The experience of the arbitrators will allow the ultimate decision to reach the essential points without extensive discovery , and arbitrators will work to avoid any unfairness or surprise by allowing specific discovery that is needed .
REASONED AWARDS
IN THE PROFESSION In the “ old days ”, arbitration awards were often “ one liners ,” not unlike a standard jury verdict . This was viewed as a safer approach for arbitrators , leaving less Photo room credit : for Daniel appeal Cole / Invision based / AP on the wording of an award . Given the universality of court enforcement of arbitration awards ( see citations , infra .), that fear is now mostly meaningless . In most complex cases , the parties prefer a reasoned award that explains the thought process of the arbitrators in reaching the decision . A reasoned award is important on many levels . In most complex construction cases , there are claims by both parties ( or in the case of multiple parties , all parties ). A www . atlantabar . org THE ATLANTA LAWYER 15