JAMS and ConsensusDocs: A Natural Collaboration

ConsensusDocs, a family of standard form construction contracts promulgated by a long list of participating construction industry associations, has been focused, from its founding in 2007, on providing form contracts that foster open communication pathways among the parties, clear allocation of risks, and avoidance or early mitigation of disputes. The neutrals within JAMS Global Engineering and Construction (GEC) Group share a similar focus in promoting efficient and cost-effective arbitration, mediation and related dispute resolution services for mitigation and resolution of disputes that arise on construction projects. Consistent with these common goals, ConsensusDocs forms include JAMS among the mediation and arbitration options that parties may choose for resolution or mitigation of disputes on projects governed by those forms.

The ConsensusDocs family of construction contract documents utilize a flexible, multistep dispute avoidance/mitigation/resolution structure that starts with direct discussions between the parties to avoid disputes, first at the project level and then between senior executives. If these discussions do not resolve the dispute, the next step is non-binding mitigation, involving either mediation, use of a Dispute Review Board (DRB) or a project neutral. JAMS GEC neutrals are especially suited for the resolution processes prescribed by the ConsensusDocs forms. Many serve frequently on DRBs and accept project neutral appointments, aided by their decades of firsthand experience with the resolution of complex construction contract issues. JAMS’ website also has suggested language describing the appointment and duties of project neutrals, just as ConsensusDocs produces a standard form DRB specification and DRB agreement, in ConsensusDocs 200.4 and 200.5.

If a DRB or project neutral is not selected, the multistep ConsensusDocs process mandates mediation in advance of binding dispute resolution. The parties are asked to select either JAMS or American Arbitration Association (AAA) mediation rules. The mediation rules themselves are rarely significant to the mediation process. Far more important are the qualifications and experience of the selected mediator and his or her familiarity with emerging alternative mediation formats that have proven effective for particular types of construction disputes. For example, should the parties utilize some of the mediation time to make presentations regarding the key facts and legal issues involved? In concept, this is an opportunity for each side to demonstrate the strength of their arguments to the other side’s decision-makers. In practice, however, it may be a waste of time or, worse, generate an emotional response (in one or both parties) that makes settlement more difficult. In situations where the level of pre-mediation information exchange and knowledge of the other party’s positions is minimal, such presentations can be highly effective. But in other cases, valuable mediation time is better spent in private caucuses with the mediator exploring resolution alternatives.

Similarly, there are emerging mediation variants with particular applicability to certain construction disputes, such a guided choice mediation, where the mediator’s role is more extensive. In this process, the mediator leads the parties through efficient, limited information exchanges that are designed to provide all parties with the specific information they need to evaluate the strengths and weakness of their arguments, assess their respective risks and formulate constructive settlement proposals, before settlement offers get exchanged. ConsensusDocs publishes a ConsensusDocs Guidebook for users who embrace or want to learn more about guided choice mediation.

A variant of guided choice mediation, often referred to as mediated case management, is designed for disputes already in litigation. In this method, the mediator again guides the parties away from broad and expensive pre-trial discovery and toward focused information exchanges that get to the heart of what the parties must focus on to resolve their dispute. Yet another alternative is mediation followed (when needed) by a neutral evaluation, which provides the parties with independent, confidential input from a neutral on the likely outcome if their dispute is taken to hearing or trial, before resuming mediation.

JAMS Global Engineering and Construction (GEC) group members devote their professional efforts to neutral assignments, whether as a mediator, arbitrator, neutral evaluator, DRB member or project neutral. They stay up to date with the current trends and latest developments in construction dispute resolution, including through JAMS’ extensive menu of educational programs and library of resources. These programs include training by JAMS GEC members who pioneered the use of several of the emerging mediation variations described above.

For the final, binding resolution step, ConsensusDocs’ form contracts offer the alternatives of arbitration (under the rules of JAMS, AAA or another provider) or litigation in court. The selection of rules in arbitration is more important than in mediation, and JAMS Construction Arbitration Rules and Procedures offer several advantages over the alternatives. For example, the JAMS rules specify that the disclosure of key information should begin as soon as the arbitration is filed, rather than after the initial scheduling conference once the arbitration panel is constituted. Under other arbitration rules, nothing much happens between the filing of the request for arbitration and the initial scheduling conference, which can be a span of three months or more. This is effectively “dead time” in terms of moving the dispute to resolution. The JAMS approach of requiring the parties to share information immediately can potentially shave months off the time to resolution.

The JAMS rules also take a more pragmatic approach to depositions. Alternative arbitration rules tend to disfavor depositions, except in unusual cases, although this limiting approach may be ignored in complex construction disputes. The JAMS rules instead allow each party to take two depositions of fact witnesses employed by the other party and require a showing of need if any more are desired. This eliminates arguing over the need for depositions and sets expectations, which lets the parties plan for depositions from the outset and set an early hearing date, again shortening the time to resolution. If depositions are not needed, the parties are not bound to conduct them.

Additionally, the JAMS rules were most recently amended in 2021 to outline the procedures for conducting arbitration hearings remotely (via platforms like Zoom or Teams), given the prevalence of virtual hearings during the pandemic and likely continued use of virtual platforms thereafter. The JAMS rules aim to make the arbitration process as focused and efficient as practicable, which supports ConsensusDocs objectives by reducing the cost of arbitration and the time needed to obtain an arbitration award, allowing the parties to get back to business.

The ConsensusDocs initiative is 15 years old and includes over 41 construction industry associations as supporting members. It has brought a perspective centered on the best interests of the project to the drafting of form contracts and has been responsible for initiating a number of innovative provisions that have advanced the state of the art in construction contracting. JAMS is delighted that the ConsensusDocs forms afford its GEC neutrals the opportunity to participate in the efficient and cost effective resolution of construction disputes as part of the future of better and more efficient construction contracting that is the ConsensusDocs goal.

Sample contract documents from ConsensusDocs can be accessed by filling out a request form. Additionally, you can sign up for a free monthly construction law newsletter via a form at the bottom of the ConsensusDocs homepage.

You can also review sample clauses, all versions of the JAMS rules and a variety of content by visiting www.jamsadr.com.

Andrew D. Ness, Esq., FCIArb, is a JAMS neutral based in Washington, D.C. He has arbitrated and mediated major, highly complex domestic and global construction cases across a variety of diverse jurisdictions and arbitral rules.

Brian Perlberg is senior counsel for construction law and contracts for AGC of America, where he handles all construction law and contract matters. He also serves as the executive director and senior counsel for ConsensusDocs, a coalition of 40 leading construction organizations. Prior to joining AGC, he served as general counsel for the Design-Build Institute of America (DBIA).