JAMS Global Construction Solutions Newsletter, Spring 2010
Source:
Date:
Spring 2010
Volume 3, No. 2 • Spring 2010
ALSO IN th IS ISSue . . .
ADR and the Reluctant Surety
by bruce reynolds
and sharon Vogel . . . . . . . . 5
GeC Neutrals Resolve an Array
of Construction Disputes . . . 9
Designing a Cost-effective
Construction Arbitration
by Zee claIborne . . . . . . . . . 10
Notices and Calendar
of events . . . . . . . . . . 14-15
JAMS, The Resolution Experts,
is the largest private provider
of ADR services in the United
States, with Resolution Centers
in major cities throughout the
country.
The JAMS Global Engineering
& C o n s t r u c t i o n G ro u p
provides expert mediation,
arbitration, project neutral
and other services to the
global construction industry
to resolve disputes in a timely
and efficient manner.
See “Cultural Sensitivities” on Page 2
to learn more about the JAMS Global engineering & Construction Group, go to http:/ /www.jamsadr.com/construction-practice/
JAMS GLOBAL
CONSt RuCt ION SOLut IONS
l eading adr developments from The r esolution experts
DIReCtOR’S CORNeR
Cultural Sensitivities
in International
Construction Arbitration
By ROY S. MITCHELL, ESQ.
By Phili P l. Bruner, eSQ. Director,
JAMS Global Engineering & Construction Group
JAMS Global Engineering & Construction
Group was founded on January 1, 2008.
In its first 24 months, GEC has mediated
or arbitrated engineering and construc-
tion cases with alleged claims and other
disputes aggregating in the billions of
dollars. Those claims and disputes arose
on major projects both within and outside
of North America, and involved numerous
types of projects – power plants, ethanol
plants, government court houses, justice
centers, hotels, airports, oil refineries, off-
shore oil rigs, mill facilities and the like.
Their subject matter invoked everything
from scope of work, delay and disruption
issues to wrongful contract terminations,
liens and demands on surety performance
bonds. GEC panel members were invited
to provide neutral dispute resolution
services because they have been rec-
ognized as among the finest and most
accomplished construction law experts
and dispute resolution neutrals in North
America and Europe. To those who invited
us to serve, we say thank you.
JAMS GeC Group Celebrates its Second Anniversary
The author has often been asked how
lawyers from one country can handle con-
struction contract issues in a wide variety
of foreign jurisdictions. The three key
answers, of course, are that: 1) contract
lawyers are particularly fortunate in that
the three primary legal systems through-
out the world – Common Law, Civil Code
and Islamic Law countries – all have as a
common denominator the sanctity of con-
tract; different names are applied to the
different approaches used in the various
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Cultural Sensitivities
continued from Page 1
legal systems, and some significant
exceptions exist, but the underlying
concepts are generally quite similar;
2) construction lawyers are further
fortunate in that the vast majority
of major international construction
contracts during the past forty years
have been awarded on standard form
contract terms, primarily a variation
of the ubiquitous FIDIC family of
contracts; and 3) dispute resolution
on construction contracts has typi-
cally been via international arbitra-
tion, which tends to yield more or
less consistent results, as opposed
to civil lawsuits which would have
involved the local court systems of
many of the 193 national jurisdic-
tions throughout the world.
However, it would be a grave
mistake for international construc-
tion lawyers to believe that the above
advantages translate into a uniform
approach to international construc-
tion arbitration, which overrides the
significant cultural differences that
exist in various regions and countries
throughout the world. They do not,
and the international construction
lawyer who fails to recognize these
cultural differences will not only en-
counter unfortunate surprises, he or
she may in fact lose cases that were
otherwise winnable. It is the purpose
of this paper to briefly discuss a few
of the cultural differences which may
create traps for the unwary in inter-
national construction arbitration.
Starting in the United States and
working eastward, and with apolo-
gies to George Bernard Shaw, Ameri-
can litigators and British barristers
are divided by a common language.
Perhaps the most shocking thing
to an American is that members of
the various British Inns of Court are
not considered to be partners with
each other, but rather a series of
individual barristers supported by a
common infrastructure. Thus, it is not
uncommon to see one of the Panel
of Arbitrators coming from the same
Inn as opposing counsel. Countless
court challenges to this system, not
only in the U.K. but also in France and
elsewhere, alleging bias or the ap-
pearance of bias such as to disqualify
the Panel member from serving have
been unavailing.
In addition, British barristers,
whether serving as advocates or
Panel members, tend to be more for-
malistic and somewhat less liberal in
their approaches to arbitration than
their American counterparts. The
concept of constructive acceleration,
for example, although widely argued
and accepted in the United States for
more than forty years, still has not
been blessed by any court rulings in
the U.K. The closest approach oc-
curred when a Panel ruling allowing
this concept was challenged on a
variety of other issues and the Court
decided that case on those issues
without commenting either favorably
or unfavorably on the Panel’s ruling
accepting a constructive acceleration
argument.
Similarly, British barristers tend
to expect, and to follow, a more
structured approach to causation
evidence in their cases. As an ex-
ample, in October 2002, the Society
of Construction Law in the U.K. is-
sued a Delay and Disruption Protocol
providing “useful guidance on some
of the common issues that arise
on construction contracts.” This is
widely accepted as the leading think-
ing in time extension analyses, and
failure to be aware of this document
in the critical areas of delay and dis-
ruption claims can result in a British
Panel Chairman or member being JAMS GLOBAL CONSt RuCt ION SOLut IONS • SPRING 2010 • PAGe 3
highly critical of a parties’ approach
to proving its case. On the concept of
constructive acceleration mentioned
above, paragraph 1.18.5 of the Pro-
tocol states that:
“Where a Contractor accelerates
of its own accord, it is not entitled
to compensation. If it accelerates
as a result of not receiving an
EOT that it considers to be due
to it, it is not recommended that
a claim for so-called construc-
tive acceleration (emphasis in
original) be made. Instead, prior
to any acceleration measures,
steps should be taken by either
party to have the dispute or dif-
ference about entitlement to EOT
resolved in accordance with the
dispute resolution procedures
applicable to the contract.”
Finally, there are significant dif -
ferences between the U.S. and the
U.K. as to how expert witnesses are
allowed to present their testimony. In
America, experts are rather typically
thought of as hired guns for the side
that employed them and it is not
unusual for them to virtually become
advocates for their side. In the U.K.
that is not allowed. Experts there are
considered primarily to be for the
benefit of the Panel to explain how
technical matters are handled, and
under many circumstances are pro-
hibited even from stating conclusions
that might be considered adversarial.
Indeed, in the U.K. experts are effec-
tively officers of the court or tribunal
and are required to make a statement
to that effect, e.g.:
Duty & Statement of Proof – Due
to the nature of my assignment
I have an overriding duty to
the Court or formal body that
has proper jurisdiction over this
dispute. I confirm that insofar as
the facts stated in my report are
within my own knowledge I have
made clear which they are and I
believe them to be true, and that
the opinions I have expressed
represent my true and complete
professional opinion.
As one continues the journey
from west to east around the globe,
the author has found that there is
a transition from relative liberalism,
i.e., allowing contractors to recover
for claims on far broader theories,
to greater and greater conservatism,
i.e., not allowing contractor recovery
unless there is a specific clause in the
contract explicitly allowing it. There is
likewise an ever growing discomfort
with the typical reliance of American
litigators on wide ranging discovery,
heavy reliance on oral testimony and
extensive use of cross examination as
a means of ascertaining the truth.
Continental Europe consists en-
tirely of Civil Code countries and here
the legal systems and culture change
from the adversarial approach uti-
lized in Common Law jurisdictions
to an inquisitorial approach. Written
submissions rather than oral testi-
mony are relied upon heavily, cross
examination is acceptable to a far
lesser degree, and discovery in the
American sense is virtually unknown.
Written direct testimony, rather than
oral, is the norm. The Panel can be
expected to take a far more active
role in questioning witnesses, hear-
ing dialogue between the Panel and
counsel with limited participation by
witnesses also can be expected, and
the use of experts selected by the
Panel becomes common.
Detailed written statements of
claim rather than bare bones plead-
ings are utilized, and direct testimony
is almost always submitted in writing.
Perhaps the most jarring to a Com-
mon Law litigator is the extent to
See “Cultural Sensitivities” on Page 4
[In] the Middle east in countries
in which Islamic law is the norm,
the most difficult concept for
a western attorney to grasp
is the extent to which religion
is the overriding consideration
even in secular matters . JAMS GLOBAL CONSt RuCt ION SOLut IONS • SPRING 2010 • PAGe which Panel members and counsel
dialogue take the place of oral tes-
timony. Representations by counsel
rather than testimony by a witness
are used extensively. To the extent
that oral testimony is utilized, the
Panel often asks questions of the
witness before counsel is allowed
to do so. Equally surprising is that
any documentary discovery desired
must be by specific designation of
the document sought. American style
fishing expeditions are totally unac-
ceptable. Another cultural difference
is that the Panel will often require
expert witnesses of the parties to be
available simultaneously for ques-
tioning, the so-called confrontation
approach, rather than separately
being presented within each party’s
case. As is obvious from the above
limited examples, an American litiga-
tor commencing arbitration without
awareness of these differences will
be severely disadvantaged.
Continuing eastward to countries
in the Middle East in which Islamic
law is the norm, the most difficult
concept for a western attorney to
grasp is the extent to which religion
is the overriding consideration even
in secular matters. This can be true
even in those countries which also
have a Civil Code or a Civil Procedure
that provide for arbitration, as is now
rather normal, since Sharia’h con-
cepts may trump such codes in ways
unexpected by a western litigator.
There is also somewhat of a distrust
of fully western Tribunals, which are
not considered sufficiently apprecia-
tive of local circumstances and con-
ditions, plus the historical residuum
of ill feelings remaining from having
been taken advantage of by western
countries during both colonial and
more recent periods. This is aggra-
vated by the fact that many of the
Middle Eastern countries are mon-
archies and that most of the major
projects are undertaken by govern-
ment agencies or other entities with
heavy government involvement. They
are simply not used to having their
authority questioned or to disputes
against government entities in their
countries. In support of their posi-
tion, they cite ICC and other statistics
during the past 30 to 40 years which
document that 1) these entities are
almost always the Respondents in
most international arbitrations in this
part of the world, and 2) Claimants
have won an overwhelming number
of these arbitrations.
Unfortunately, this perceived
disadvantage is often attempted to
be overcome by nominating a local
person to be a Panel member but
the two remaining members, includ-
ing the Chairman, are Europeans
or, to a lesser extent, Americans.
The local nominees may have little
or no experience in international
arbitration and may be selected
with an expectation that they will
serve in some manner partial to the
Respondent’s position. Such a person
is likely to be marginalized by the two
remaining Panel members and thus
be unable to become an effective
Panel member. A more sophisticated
response has been the recent growth
of arbitration centers within this area
that are increasingly being named in
construction contracts rather than
utilizing ICC or other western centers
and rules.
Another cultural difference is a
tendency in some countries in the
Middle East to distinguish between
official contracts or documents which
they consider binding on them to
“unofficial” contracts or documents
which they do not. This is a foreign
concept to most western Tribunals
and most often works to the detri-
ment of the Respondent. The author
experienced this problem in an UN-
CITRAL arbitration between a Euro-
pean Claimant and Middle Eastern
Respondent in which the General
Counsel of the Respondent insisted
in testifying that the various “unof-
ficial” letters bearing his signature in
Cultural Sensitivities
continued from Page 3JAMS GLOBAL CONSt RuCt ION SOLut IONS • SPRING 2010 • PAGe which he admitted Claimant’s posi-
tion to be valid should have no bear-
ing on the case because his official
letters denied this. This destroyed the
credibility of both the witness and the
argument in the eyes of the British
and French arbitrators on the Panel
and the Respondent lost the case.
Finally, some of the more conser-
vative Middle Eastern countries such
as Saudi Arabia have the concept
that employees of a party cannot
testify because their testimony would
inherently not be credible and thus,
that such testimony should come
only from others. Some may also
entertain the concept that Muslim
witnesses or entities are inherently
more credible than non-Muslims.
These ideas can completely derail a
western litigator who is unaware of
these cultural considerations.
Moving now to Asia, the primary
cultural difference is the well known
aversion to confrontation and the
desire to reach a mutual agreement
unless it is absolutely impossible to
do so. Thus, westernized arbitration
concepts are not as culturally accept-
able as mediation or conciliation.
This, coupled with an emphasis on
technical matters to the exclusion
of contractual terms, often creates
difficulties. In one arbitration, for
example, the Claimant went to
great lengths to explain the techni-
cal difficulties of the problem and
ignored the timeliness and contract
administration requirements of the
contract. Because this was a delay
claim involving liquidated damages,
the western Arbitrator hearing the
case did not feel he was getting
answers to various questions asked.
Even more telling was a situation in
which, under the local rules, dispute
resolution started as conciliation
but then shifted to arbitration if the
conciliation failed. During the lat-
ter process, the Panel expressed its
strong aversion to any type of cross
examination and made it clear that to
continue to do so would result in an
award to the other side. An American
litigator crosses such boundaries at
his or her own risk.
Many other examples from the
author’s experience could be pro-
vided but space prohibits doing so,
and this paper is intended only to be
a generalized discussion of these is-
sues. There are many excellent sourc-
es for more detailed information on
this subject to which the reader is
directed. The primary point, however,
is that Arbitrators, like counsel and
the parties involved, tend to follow
methods and procedures with which
they are familiar, and American
litigators who are not aware of this
predilection do a disservice to them-
selves and their clients.
Based in Washington, D.C., Mr. Mitchell is
a mediator, arbitrator and project neutral
with the JAMS Global Engineering & Con-
struction Group. He is a retired partner
from the international law firm of Mor-
gan, Lewis & Bockius LLP and a former
President and CEO of the Construction
Claims Group of Hill International, Inc.
Email him at rmitchell@jamsadr.com or
view his JAMS Engineering & Construc-
tion bio online.
In the turbulent economic envi-
ronment of the current recession,
surety claims are on the increase as
contractor insolvencies rise. More
defaulted contract means that, al-
though most such troubled projects
will be completed without disputes
as to liability between surety and
obligee, a certain proportion of
surety claims will be denied, resulting
in significant disputes. Traditionally,
such circumstances have triggered
a significant upsurge in litigation
and reported decisions in regards
to surety bond claims. Will that be
the case over the coming years, or
will the surety community avail itself
of the ADR mechanisms that have
taken hold in the market since the
last significant recession? Historically,
See “ADR & the Reluctant Surety” on Page 6
ADR and the Reluctant Surety
By BRuCE REYnOLdS and S HAROn VOGEL
sureties have displayed a reluctance
to participate in certain ADR process-
es, particularly arbitration; however,
public policy considerations militating
in favor of such processes may influ-
ence the courts to compel all parties
to a construction dispute, including
sureties, to participate in ADR.
Clearly, participation in mediation JAMS GLOBAL CONSt RuCt ION SOLut IONS • SPRING 2010 • PAGe in relation to the potential resolution
of litigation in respect of bond claims
is a less contentious issue for sure-
ties than participation in arbitration,
given the non-binding nature of the
process and the potential advantages
of mediation from a surety’s perspec-
tive. Surety disputes generally involve
numerous parties and many docu-
ments, such that an early mediation
can be cost effective if it results in a
settlement of the litigation. Perhaps
most importantly, participating in
mediation allows the parties to select
an expert construction mediator with
experience in addressing the issues
in dispute. As well, participating in
a mediation allows the parties to
disclose facts on a without prejudice
basis and the mediated settlement
is private. Furthermore, given that
mediation is conciliatory in nature,
mediation may assist in preserving
business relationships and, if proving
unsuccessful, can simply be brought
to an end unilaterally inasmuch as it
is non-binding.
Where the proverbial rubber hits
the road in relation to a surety’s par-
ticipation in ADR is with respect to
whether or not a surety is bound to
participate in a mandatory arbitra-
tion under the bonded construction
contract between the principal and
the obligee. In this regard, almost all
performance bonds and labor and
material payment bonds contain
language which incorporate by ref-
erence the contract(s) between the
obligee (owner) and the principal
(contractor). Given the mandatory
arbitration provisions that are now
prevalent in construction contracts,
the issue squarely arises as to wheth-
er or not a surety will be compelled
to submit to arbitration where the
underlying construction contract
contains a mandatory arbitration
clause. Canada and the United States
have adopted different approaches.
In Canada, the Courts have not
forced sureties to participate in an
arbitration between an obligee and
a principal, although in practical
terms, if a surety does not partici-
pate, there is a risk that a companion
bond action will be stayed and/or
that the surety will be bound by
the findings in the arbitration. For
example, in the frequently cited
Alberta Queen’s Bench decision in
Kvaerner Enviropower Inc. v. Tanar
Industries Ltd. [1994] 9 W.W.R. 228
(Alta.) the Court addressed an ap-
plication for a stay of an action and
a referral to arbitration in a case in-
volving a surety. The application was
brought by Kvaerner Enviropower
Inc. (“Kvaerner”) which had agreed
to construct a wood burning facility
in Whitecourt, Alberta. Kvaerner had
entered into a subcontract with Tanar
Industries Ltd. (“Tanar”) to provide
labor and materials for mechani-
cal erection and piping. Tanar had
obtained a performance bond and
a labor and material payment bond
from Sovereign General Insurance
Company (“Sovereign”). Tanar failed
to pay some of its subcontractors and
suppliers on the project. Sovereign
paid claims under the labor and ma-
terial payment bond and obtained
assignments of all of the rights of the
subcontractors and suppliers, includ-
ing their lien rights. Kvaerner sought
to stay the lien actions and refer the
matter to arbitration based on the
mandatory arbitration provision in
the subcontract between Tanar and
Kvaerner.
After a careful review of the rel-
evant provisions of the construction
contract, the Court concluded that
Kvaerner and Tanar had agreed by
contract to submit “any controversy”
between them to arbitration and
that the issues presented constituted
“controversies,” as they were “differ-
ences arising out of commercial, legal
relationships, and in the context of
the contract at bar.” However, with
respect to Sovereign’s participation in
the arbitration, the Court accepted
the argument that “Sovereign has
not agreed to arbitrate its differ-
ences with Kvaerner and therefore
ought not be compelled to arbitrate
those differences.” The Court found
that the incorporation by reference
provision in the bond could not
be interpreted as an agreement to
submit issues between Kvaerner
and Sovereign to arbitration. The
Court therefore refused Kvaerner’s
application for an order referring
differences between it and Sovereign
to arbitration. The Court did state
that the incorporation by reference
language in the performance bond
ADR & the Reluctant Surety continued from Page 5JAMS GLOBAL CONSt RuCt ION SOLut IONS • SPRING 2010 • PAGe “may mean, and indeed probably
does mean, that an arbitration award
on issues between Kvaerner and
Tanar will bind Sovereign as to the
amounts found by the arbitra-
tors.” [emphasis added] The Court
also stayed Sovereign’s lien action un-
til the resolution of the arbitration on
the basis that the surety’s lien claims
were included in Tanar’s lien and that
security for the one was security for
the others.
The Alberta Court of Appeal
dismissed the appeals of both par-
ties, including Sovereign’s appeal of
the stay. The Court noted that the
arbitration was to take place within
a reasonable timeframe and that
Sovereign was at liberty, if there was
any delay or new problem, to apply
to lift or vary the terms of the stay.
The Court of Appeal stated that it
“did not understand that the learned
chambers judge has said Sovereign
is in any way bound by the results
of the arbitration.” This comment is
interesting in light of the chambers
judge’s comments about Sovereign
being bound by the “amounts found
by the arbitrators.”
Subsequently, the Nova Scotia
Supreme Court followed Kvaerner in
its decision in Meridian Construction
Inc., Re. (2006), 16 C.B.R. (5th) 219,
240 N.S.R. (2d) 236,763 A.P .R. 236.
The facts of Meridian involved an
application by Shannex Inc. (“Shan-
nex”) pursuant to Section 69.4 of
the Bankruptcy and Insolvency Act
(“BIA”) to lift a stay of proceedings
in relation to a bankrupt corporation,
Meridian Contracting Inc. (“Merid-
ian”) with respect to an ongoing
arbitration between Shannex and
Meridian. St. Paul Guarantee Insur-
ance Company (“St. Paul”), which
had been called upon under various
bonds issued on Meridian projects,
was aware of the arbitration be-
tween Shannex and Meridian and
was funding Meridian’s legal costs.
However, St. Paul denied that it had
participated in the arbitration.
The arbitration had been un-
derway when an Order was made
placing Meridian into bankruptcy.
The Court concluded that there was
no compelling reason to exercise its
discretion to lift the automatic stay
of proceedings against Meridian,
noting that Shannex was still free
to pursue its claim against St. Paul
in a companion performance bond
action. In support of the conclusion
that the arbitration award would
not be binding on the surety in any
event, the Court pointed out that
an arbitration award only binds the
parties to the arbitration agreement
pursuant to which it is made. The
Court also stated that there was no
evidence before it that, apart from
funding legal counsel, St. Paul had
directed the conduct of the arbitra-
tion and that “using the arbitration
as a ‘platform’ for the claim against
St. Paul is a precarious strategy.”
Allowing the arbitration to proceed
would raise the potential for incon-
sistent findings in the arbitration and
performance bond actions.
Conversely, a trend has developed
in U.S. caselaw over the last 25 years
supporting the proposition that a
surety is committed to arbitration
by incorporation in its performance
bond of a contract containing a bind-
ing arbitration clause.
In the 1966 decision of Trans-
america Insurance Co. v. Yonkers
Contracting Company, Inc. 49 Misc.
2d 512; 267 N.Y.S.2d 669; (1966)
N.Y. Dist. LEXIS 2333 the successor
to a surety on a performance bond
obtained by a subcontractor was
successful in seeking to stay an ar-
See “ADR & the Reluctant Surety” on Page 8
bitration demanded by the general
contractor between the contractor
and predecessor surety. The Court
found that the successor surety was
not a party to the original arbitration
clause contained in the subcontract
and evidenced no intention to be
included as a party thereto. The
incorporation by reference in the
performance bond of the bonded
subcontract was not found to be
sufficient to require the surety to
submit to arbitration. At that time,
the prevailing line of cases led to
the conclusion that arbitration could
not be judicially mandated, unless by
clear and unequivocal language the
parties involved had agreed thereto
and an arbitration agreement would
not be extended by construction or
by implication.
Similarly, in 1981, the United
States District Court for the Southern
district of Ohio Eastern Division in
Windowmaster Corp. v. B.G. Danis
Company 511 F. Supp. 157; 1981
U.S. Dist. LEXIS 12958; 23 Ohio Op.
3d 83 found that a surety was not
bound by an agreement to arbitrate
entered into between its principal
and a third party because the surety
was not a party to the contract. There
the Court referred to the general
principle of law that parties cannot
be required to submit to arbitration
any dispute which they have not
agreed to so submit.
However, the 1984 decision in Ex-
change Mutual Insurance Company v.
Haskell (1984), 742 F.2d 274 marked
the beginning of a new trend. In this
case, the U.S. Court of Appeals for
the Sixth Circuit compelled a surety
to submit to arbitration. The case
concerned an agreement to build a
shopping center. Haskell Company
(“Haskell”) was the prime contractor JAMS GLOBAL CONSt RuCt ION SOLut IONS • SPRING 2010 • PAGe and subcontracted a portion of the
work to Rogersville Co. (“Rogers-
ville”), which agreed to install the
parking lot for the shopping centre.
Rogersville obtained a performance
bond through Exchange Mutual
Insurance Company (“Exchange Mu-
tual”). A dispute arose and Haskell
made a claim under the performance
bond. Haskell initiated arbitration
proceedings against Exchange Mu-
tual. Exchange Mutual obtained an
order to restrain arbitration. The U.S.
District Court subsequently dissolved
the temporary restraining order and
ordered the action to proceed to
arbitration. The Court of Appeals
agreed with the District Court. There,
the Court found that although Ex-
change Mutual was not a signatory
to the primary construction contract,
the Rogersville performance bond
incorporated by reference the terms
of the underlying subcontract, and
the subcontract, in turn, incorpo-
rated by reference the terms of the
general contract, which imposed an
obligation to submit all unresolved
disputes to arbitration. The Court
rejected Exchange Mutual’s argu-
ment that it was not a signatory to
the general contract which contained
the arbitration clause.
A review of subsequent U.S. de-
cisions indicates that the eleventh,
sixth, fifth, third, second and first
circuits of the U.S. Courts of Appeal
and several District Courts have re-
quired sureties to arbitrate. Federal
policy in the U.S. favors arbitration
and requires a liberal construction
of arbitration clauses (See Harford
Fire Insurance Company v. Latona
Trucking, Inc. 984 F. Supp 95; 1997
U.S. Dist. LEXIS 15375, Commercial
Union Insurance Company v. Gilbane
Building Company 992 F.2d 386;
1993 U.S. App. LEXIS 10909, and
Lee Hoffman v. Fidelity and Deposit
Company of Maryland 734 F. Supp.
192; 1990 U.S. Dist. LEXIS 4133).
Interestingly, in the 1996 case of
Aetna Casualty and Surety Company
v. L’Energia 1996 U.S. Dist. LEXIS
5732, the United States District Court
for the District of Massachusetts
accepted the proposition set out in
Exchange Mutual that a surety, by
incorporating an underlying contract
containing an arbitration clause into
a surety bond, has approved the ar-
bitration clause, such that the surety
must also have agreed to arbitrate
its own disputes pursuant to the
procedures of the arbitration clause.
However, the implementation of this
principle was considered problematic
in this case, as both the surety and
the principal wished to “take a seat
at the arbitration table, or at least
wished to have a say about how
the seating should be done.” The
District Court held that under the
current law, the surety presumably
ADR & the Reluctant Surety continued from Page 7
could be compelled to participate in
some arbitration, but the Court was
not convinced that it could compel
the surety to participate in the filed
arbitration, which was a consolidated
arbitration under the AAA regarding
two classes of claims, although it did
stay the litigation.
For a surety, there may be advan-
tages to participating in arbitration,
for example where maintaining
privacy over the ultimate ruling
is important. In the U.S., a surety
may favor arbitration in document
intensive and factually complicated
cases where an arbitrator with con-
struction experience may be better
suited to serve as a decision maker
than a judge or jury who have no
experience in the area. In Buck Run
Baptist Church Inc. v. Cumberland
Surety Ins. Co. Inc. 983 S.W.2d (KY.
1998) the surety actually compelled
the obligee, Buck Run Baptist Church
(“Buck Run”), to arbitrate under the
contractual provisions between Buck
Run and its general contractor. Buck
Run argued that the dispute was not
subject to arbitration because the
performance bond was an insurance
contract, rendering any dispute aris-
ing thereunder exempt from arbitra-
tion pursuant to the law of Kentucky.
The performance bond clearly and
specifically incorporated by reference
the construction contract. The surety
had stepped into the shoes of its
principal and became the contractor
on the job. The surety was successful
in compelling Buck Run to arbitrate,
as the Court held that the insurance
contract exemption to arbitration did
not apply.
Thus, in contrast to the Canadian
experience, it appears that American
courts have developed a willingness JAMS GLOBAL CONSt RuCt ION SOLut IONS • SPRING 2010 • PAGe In his Director’s Column in this issue, Phil Bruner
states that, since JAMS Global Engineering & Con-
struction Group was founded 24 months ago, it has
arbitrated or mediated engineering and construction
cases with alleged claims aggregating in the billions of
dollars.
The following represents some of the larger and
more complex projects and claims which JAMS GEC
neutrals have recently been helping to resolve:
doug Oles, Harvey Kirsh and John Hinchey
arbitrated a $16 million claim of a contractor
against an owner for the quantification of a ter-
mination for convenience provision in a contract
for the construction of a cement mill facility in
West Virginia
Philip Bruner conducted an arbitration of
claims aggregating $125 million arising out of
the delayed completion and termination of a
construction contract for the conversion of an
historic Manhattan warehouse into luxury con-
dominium units
Zee Claiborne, Harvey Kirsh and Barry Grove
arbitrated a $12 million claim of a subcontractor
against a contractor relating to the fabrication
and erection of structural steel racking and pro-
cess equipment arising out of the construction
of a gas oil hydrocracker unit for an oil refinery
near Salt Lake City, Utah
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•
Kenneth Gibbs and George Calkins were
members of an arbitration panel which was
constituted to deal with a dispute between an
owner, a contractor and a surety for $20 million
in damages for delay, scope changes, termination
and breach of contract issues arising out of the
construction of a hotel in San Diego, CA
John Hinchey, Roy Mitchell and Philip Bruner
arbitrated breach of contract claims and coun-
terclaims aggregating $30 million relating to
the construction of an ethanol distillation plant
in Ohio
Kenneth Gibbs acted as mediator with respect
to multi-party claims aggregating $35 million
for delays and defective work arising out of
the construction of a water treatment plant in
Austin, Texas
Roy Mitchell arbitrated a ship construction
dispute involving issues of delays and additional
costs between a prime contractor and a subcon-
tractor under a multimillion dollar U. S. Govern-
ment contract
Philip Bruner and Kenneth Gibbs were mem-
bers of an arbitration panel relating to a multi-
party dispute between an owner, a contractor, a
surety and subcontractors for claims aggregating
$120 million for deficiencies, scope of work and
breach of contract issues arising out of the con-
struction of a courthouse in Las Vegas, Nevada
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to compel a surety’s participation in
arbitration based on the public policy
favoring arbitration.
Given the increasing use of ADR
in the current economic climate, it
is likely that sureties, like other par-
ticipants in the construction industry,
will participate more frequently in
ADR. To date, one of the most inter-
esting issues that has arisen in this
context is whether or not a surety
can be compelled to arbitrate in a
situation where the underlying con-
struction contract contains an arbi-
tration clause. In litigating this issue,
much will depend on the wording of
the bond and the bonded contract
as well as the surrounding circum-
stances, but to date, the American
and Canadian courts have taken
significantly different approaches
to this issue, with American courts
showing a much greater willingness
to compel sureties to arbitrate.
GeC Neutrals Resolve An Array of Construction Disputes
Bruce Reynolds is Chair of the Inter-
national Construction Projects Group and
a partner in the Construction, Engineer-
ing, Surety and Fidelity Law Group in the
Toronto office of Borden Ladner Gervais
LLP. Email him at breynolds@blgcanada.
com.
Sharon Vogel is also a partner in the
Toronto office of Borden Ladner Gervais
LLP. Email her at svogel@blgcanada.
com.
The authors gratefully acknowledge
the assistance of Bethany Howell, an
articling student at BLG, in assisting with
the research for this paper. JAMS GLOBAL CONSt RuCt ION SOLut IONS • SPRING 2010 • PAGe 10
BY ZELA “ZEE” G. CLAIBORnE, ESQ.
Construction attorneys and their
clients were among the first to adopt
arbitration as an efficient and eco-
nomical alternative to court trials.
Discovery was sharply limited, the
arbitrators were to issue an award
no more than 30 days after the
close of hearings, and finality was
assured since there was no lengthy
appeal. Since the 1980s, arbitration
has grown in popularity and many
types of businesses have been us-
ing it with increasing frequency to
resolve disputes. But as arbitration
has evolved, many have expressed
a concern that arbitration has be-
come increasingly cumbersome and
uneconomical – just like the trials it
was meant to replace.
After selecting an arbitrator or ar-
bitration panel, counsel can begin to
work with the arbitrators and oppos-
ing counsel to design a process that
suits the case. Of course, arbitration
is adversarial and the parties will not
agree on the merits. Nevertheless,
working together – even partner-
ing – to design a suitable process is
mutually advantageous. Such coop-
eration will save all parties time and
money, while assuring that there is
a full and fair hearing. A good time
to open this discussion with oppos-
ing counsel is sometime before the
preliminary conference when counsel
and the arbitrators meet for the first
time, in person or on the phone, to
discuss plans for the case.
The flexibility of the process is
one of arbitration’s main benefits.
Nonetheless, even experienced con-
struction counsel sometimes fail to
take advantage of the fact that the
process can be tailored to fit the
particular case.
The following are suggestions for
working with arbitrators toward a
fair and efficient process. All notes
on the Rules refer to the new JAMS
Engineering and Construction
Arbitration Rules & Procedures
effective July 15, 2009.
Prepare a
Clear Statement
of Claims
At time of filing or very early in the
process, and certainly before the pre-
liminary conference, it is important to
file a statement of the case, including
background facts and outlining all
claims. While the damages calcula-
tions for most construction claims
will not be final until the experts
complete their work, the numbers
can be brought up to date later. At
the preliminary conference, it is a
good idea to set a date for amend-
ing the claims and counterclaims to
specify and quantify damages.
Lengthy litigation-style formulaic
pleadings are neither required nor
helpful. Claims, answering state-
ments and counterclaims should
be stated in a straightforward and
concise manner to avoid confusion
and wasted time at the outset of
the case. What is important is that
opposing counsel and the arbitration
panel are clear on the claims being
made so that it is possible to shape
the process to the dispute at hand.
Start Designing
the Process at
the Preliminary
Conference
There is a long list of items to be
discussed at the Preliminary Confer-
ence. For example, this is the time
to agree on the hearing dates and
location, to set a time for submitting
a discovery plan, and to schedule
dates for exchanging witness lists
and arbitration exhibits, pre-hearing
briefing, and so forth. Some of these
arrangements are particularly impor-
tant in laying the foundation for fair
and efficient hearings. See Rule 16.
The Preliminary Conference is a good
time to begin a collaboration with
Designing a Cost-effective Construction Arbitration
Ms. Claiborne is an arbitrator and media-
tor with the JAMS Global Engineering &
Construction Group. Based in Northern
California, she has been arbitrating con-
struction and commercial disputes since
1991 and has served as a full-time neutral
since 1998. Email Ms. Claiborne at zclai-
borne@jamsadr.com or view her JAMS
Engineering & Construction bio online.JAMS GLOBAL CONSt RuCt ION SOLut IONS • SPRING 2010 • PAGe 11
See “Designing” on Page 12
the arbitrators to design an effective
process.
First, set hearing dates and stick
to the schedule. Arbitration hearings
are best held on consecutive days.
It may make sense to schedule an
extra day or two just in case the hear-
ings take more time than expected.
Also, continuances can be extremely
expensive. There is a huge cost in-
volved in preparing for hearings and
then having to re-mobilize at a date
months later. Especially when there
are three arbitrators, it may be diffi-
cult to reschedule hearings since the
calendars of the arbitration panel as
well as those of the parties, counsel,
and witnesses must be considered.
Furthermore, most experienced ar-
bitrators will charge a fee for time
reserved and unused, especially if the
hearings are continued or cancelled
at the last minute. Save money and
time for your client by going forward
on schedule.
Second, agree to limit motion
practice. Motions in limine and
dispositive motions can be waste-
ful at arbitration, especially if there
has been little discovery. One of the
grounds for vacating an arbitration
award is the arbitrators’ refusal to
hear relevant evidence. See FAA
10 (a) (3). Arbitrators will be con-
cerned about preparing an award
that ultimately will be confirmed
and their rulings will be influenced
by an interest in protecting the final
award. Further, arbitrators often are
reluctant to grant dispositive motions
since there is no appeal in arbitration
unless the parties have agreed in
writing in advance to utilize the Op-
tional Arbitration Appeal Procedure
pursuant to Rule 34.
Third, consider whether the hear-
ings should be bifurcated into liability
and damages phases, for example,
or otherwise set to move forward in
phases. The attorneys may want to
confer with the arbitrators to reach
agreements on the order of proof
so that the hearings move forward
smoothly.
For example, in a complex case
involving claims of breach of contract
and fraud arising out of construction
of a high tech facility, claimants and
respondents agreed to divide the
hearings into phases. They handled
each discreet issue completely before
moving to the next phase, rather
than adhering to the usual order
where claimants present their entire
case and respondents’ case follows.
In addition to the various claims,
there were later phases to deal with
claims for attorneys’ fees and costs
as well as punitive damages.
Fourth, familiarize yourself with
Rule 6 (e) which allows for consoli-
dation of arbitrations with common
issues of fact or law. Construction
disputes often involve multiple par-
ties and arise out of the same project
so consolidation may save time and
money.
Finally, if there are witnesses who
may be unavailable, discuss how to
preserve their testimony, or make
plans to have them testify via video.
Most arbitrators will be flexible in
making these arrangements in order
to assist counsel in presenting the
case efficiently.
In all of these matters, the arbi-
trators are empowered to make the
necessary rulings if counsel cannot
reach agreement. Rule 11.
Limit Discovery
As arbitration has been treated
more like litigation, there has been
more discovery in construction cases.
Discovery is the most expensive part
of any arbitration, especially now that
so much of it involves electronically
stored information. The key here is
that discovery should be proportional
to the dispute’s complexity. Obvious-
ly, counsel will do more discovery for
a bet-the-company, complex dispute
than for a case involving a simple
breach of contract.
Here again, it is in the parties’ in-
terest for all counsel to work with the
arbitrators to rein in costs. Establish-
ing a reasonable discovery plan may
be the best way to avoid unnecessary
expense. Clients no doubt will ap-
preciate this effort.
In the early days of arbitration,
discovery was limited to exchanging
documents and witness information.
Traditionally in arbitration, there is a
broad exchange of all relevant and
non-privileged documents. Counsel
can work together to agree on elec-
tronic discovery limits to try to avoid
the enormous costs involved. Also,
at a certain time, both sides will be
required to identify the witnesses
expected to testify.
For expert witnesses, it is impor-
tant to establish a procedure for
exchanging biographies and reports.
Although counsel sometimes request
an opportunity to issue interrogato-
ries and requests for admission, those
types of discovery are not favored in
arbitration since they can be time
consuming and expensive, and often
fail to elicit significant information.
In a complex, high-dollar case,
taking some depositions actually
may save time during the arbitration
hearings. Experienced arbitrators
know that listening to an attorney
examine a witness extensively at the
hearings, an exercise that is similar JAMS GLOBAL CONSt RuCt ION SOLut IONS • SPRING 2010 • PAGe 12
to a deposition, can be a poor use
of hearing time.
Talk with opposing counsel and
agree on a limited number of deposi-
tions that are also limited in duration.
If agreement is not possible, an expe-
rienced arbitrator can hear the argu-
ments of both sides and then make a
ruling on the number of depositions
to be allowed. Sometimes in a large
case, for example, an arbitrator may
allow five depositions for each side,
each deposition not to exceed seven
hours. Or perhaps that arbitrator will
rule that each side may have forty
hours of deposition time to be used
as desired.
Again, the discovery process
should be designed to fit the case.
Arbitrators will make the necessary
rulings to avoid gamesmanship or a
scorched-earth approach. Typically,
arbitration rules empower an arbitra-
tor to manage discovery. See Rule
17(d).
Agree on
Limited Time
for the Hearings
If possible, it is a good idea to
agree on a number of hearing days
and an amount of time allotted to
each party. The “chess clock” ap-
proach to hearing time is one of the
best ways to ensure that hearing time
and cost will not exceed the time
necessary for a full and fair hearing.
Usually, if there are two parties, they
agree to split the time, with each side
being allowed a specific number of
hours to put on its case and conduct
cross examination.
This approach worked well in
a multi-million dollar construction
dispute between a developer and a
general contractor, involving claims
of cost overruns and delays caused
by deficiencies in the architectural
and structural drawings, among
other things. In this case, the time
scheduled for trial was three to four
months. After many delays in obtain-
ing a courtroom, counsel agreed on
an arbitration schedule of six weeks,
with the time evenly divided between
the parties. The limited time allot-
ted led to an efficient and effective
presentation of evidence from both
parties.
The chess clock approach has the
benefit of forcing everyone to use
the hearing time in a disciplined way.
Counsel with limited time tend to
focus on those witnesses and docu-
ments most important to the case.
The approach has the added benefit
of assuring that the arbitrators will
hear a clear and concise presentation
of claims and defenses. Limited time
also assures that hearing time will not
be wasted in rambling and confusing
cross examinations. The attorneys are
forced to be brief, clear and to-the-
point on cross.
There are many other approaches
to encouraging efficient use of hear-
ing time. Sometimes counsel will
agree to present percipient or expert
direct testimony in written declara-
tions with an opportunity for a live
cross examination. Also, by agree-
ment, all documents can be admitted
without formalities if no objections
to documents on the exhibit list
have been raised in advance of the
hearings. Demonstrative exhibits are
worth considering, too, since they
can help arbitrators get up to speed
quickly on the chronology of events,
the relationships of various entities or
on damages theories.
Avoid
Unnecessary
Objections
Since strict conformity to the rules
of evidence is not required in arbitra-
tion, raising numerous objections is
not useful. It may be important to
object to hearsay in order to alert
the panel to it, but that objection will
only go to the weight to be given to
that evidence and will not preclude
it. Save objections for important mat-
ters and avoid slowing the hearings
with repeated interruptions. Rule 22
(d).
Avoid Restrictive
Arbitration
Provisions
Most construction arbitrations
take place pursuant to an arbitration
provision in the parties’ contract.
Often a construction contract will
call for a three-step process with
negotiations among representatives
of each company followed by media-
tion and, finally, by arbitration. Some
arbitration provisions are general,
calling for arbitration of “all disputes
arising under this agreement.” Oth-
ers are more specific and set a time
frame for completing the hearings
and the award’s issuance, discovery
limits, applicable rules of evidence,
etc. These requirements are agreed
upon at the time of contracting, but
Designing a Cost-effective Construction Arbitration continued from Page 11JAMS GLOBAL CONSt RuCt ION SOLut IONS • SPRING 2010 • PAGe 13
often the dispute arises long after
the contract’s execution, and is not
the type of dispute anticipated dur-
ing negotiations. For that reason,
the arbitration provision’s restrictions
may not be suitable to the dispute at
hand. The better practice is to use a
broad form arbitration provision and
agree on specific process details after
a dispute arises.
In a dispute involving hospital
construction, the contract specified
that discovery was to be completed
and the hearings were to proceed
within 90 days of the arbitrators’
selection. At the preliminary hear-
ing, both sides agreed that the time
frame specified was too short and
both stipulated to an additional two
months so that they could be pre-
pared for efficient hearings. Counsel
agreed that they needed extra time
to exchange documents, many of
which were in electronic form, and
to take a few key depositions. This
stipulation allowed the attorneys to
be prepared so that the hearings
could go forward smoothly and avoid
further delay.
In another case involving a dis-
pute arising out of the renovation
of a small commercial building, the
arbitration provision provided for
an expedited process with only a
half day of hearings for each side.
When a dispute actually arose, one
side claimed damages exceeding a
million dollars and both sides raised
time-consuming issues. In this case, it
was necessary to schedule additional
hearing days so that each side could
make a full presentation of its case.
Sometimes, too, the arbitration
provision limits discovery unreason-
ably. For instance, although the provi-
sion may specify that no depositions
can be taken, sometimes a brief
deposition of a key witness will save
hours of hearing time because coun-
sel can be well prepared in advance
for efficient witness examination.
Stipulations to modify the process
specified in an arbitration agreement
can help match the procedure to the
dispute and benefit all parties. Since
arbitration is contractual, counsel
and the parties are free to work with
the arbitrators to stipulate to any
changes they believe are appropriate
to fit the case.
Select Decisive
Arbitrators
None of these techniques for
making arbitration economical will
work unless the arbitrators are ex-
perienced, decisive and willing to
make the necessary rulings. Good
arbitrators actively manage a case ex-
peditiously, both during the discovery
phase and during the hearings.
If problems arise during discovery,
arbitrators should be available to
make decisions promptly as needed
through emails or conference calls
– not ex parte, of course – and
often on shortened notice. Usually
one arbitrator will be designated to
make decisions on routine discovery
issues, with the others weighing in
on more important matters. In a re-
cent contract dispute involving two
construction companies doing busi-
ness on different sides of the country,
it was necessary to confer by phone
with the attorneys weekly in order to
resolve discovery disputes and keep
the case on track for prompt hear-
ings. By contrast, other cases move
forward to hearing with few or no
disputes.
During the hearings, arbitrators
should be ready to move the case
along, making rulings as needed in
accordance with the rules selected by
the parties. Active arbitrators assist
in avoiding gamesmanship and deal
effectively with cumulative evidence,
helping the parties avoid unnecessary
hearing time. See Rule 22 (d).
Review the biographies of the
proposed arbitrators, including ex-
amples of cases they have handled in
the past. Ask for references. Particu-
larly in large cases, it is customary to
interview potential arbitrators – not
ex parte but jointly with opposing
counsel. During these interviews,
arbitrators should not be asked about
issues in the case but rather about
their experience, style and manage-
rial skills.
The flexibility of the arbitration
process, including the ability of the
attorneys and the parties to work
with the arbitrators to tailor arbitra-
tion to fit a particular case, can be an
enormous benefit to all participants.
Using these suggestions and design-
ing others to streamline a case will
lead to a just, speedy and cost-effec-
tive resolution and to greater client
satisfaction with the process, win or
lose.
WAnT TO receive ThiS neWSleTTer elecTrOnicAlly?
To sign up for your complimentary electronic copy of JAMS Global Construction Solutions,
please go to http://www.jamsadr.info/info/index/pg_register
or email constructionsolutions@jamsadr.com.JAMS GLOBAL CONSt RuCt ION SOLut IONS • SPRING 2010 • PAGe 1 uPCOMING eVeNtS
MAY 13-14, 2010: 17th Annual West coast casualty construction Defect Seminar
Disneyland Hotel and Resort • Anaheim, CA • http://www.westcoastcasualty.com
JAMS is a sponsor of this event, the largest seminar of its kind worldwide focusing on all of the elements of the prosecution, defense,
coverage and technologies of construction defect claims and litigation from a national perspective. JAMS neutrals HOn. JOnATHAn
CAnnOn (RET.), RICHARd CHERnICK, ESQ., ROSS W. FEInBERG, ESQ., KEnnETH C. GIBBS, ESQ., GERALd A. KuRLAnd, ESQ.,
HOn. ROBERT E. MAY (RET.), and HOn. STEPHEn J. SundVOLd (RET.) will speak on a wide range of issues.
MAY 27-30, 2010: “comparative construction law – Different Strokes”
13th Annual conference of the canadian college of construction lawyers
Westin Nova Scotian • Halifax, Nova Scotia • http://www.cccl.org/
JAMS GEC neutrals HARVEY J. KIRSH, ESQ. and PHILIP L. BRunER, ESQ. will discuss “International Construction Dispute Resolution.”
JOHn W. HInCHEY, ESQ. and HH HuMPHREY LLOYd, Q.C. of JAMS will address “Comparative Construction Law Topics.”
ReCeNt hONORS
On April 26, 2010, the CARL M. SAPERS ETHICS In PRACTICE fund was established at the Harvard Graduate School of Design. The
Dean of the School of Design announced that over $100,000 had been raised “to build upon Professor Sapers’ leadership in the field of
architectural ethics and practice [by] advancing knowledge in the field of architectural ethics in practice, including research, publications,
and lecture support for faculty, scholars, and students at the GSD and in collaboration with related institutions.” Mr. Sapers is an Adjunct
Professor of Studies in Professional Practice in Architecture at the school and a JAMS GEC neutral.
ReCeNt ARtICLeS AND SPeAKING eNGAGeMeNtS
HOn. CLIFFORd L. MEACHAM (RET.), JAMS, is co-author of a Chapter on subcontractor’s rights in the Illinois Institute of
Continuing Legal Education publication on Mechanic’s Lien law issued in February 2010.
JudGE MEACHAM also participated in a panel discussion of mortgage foreclosure issues on ABC local news in Chicago on March
23, 2010.
At the 12th Annual Conference of the American Bar Association, Section of Dispute Resolution on April 9, 2010 in San Francisco,
JAMS neutrals JOHn W. HInCHEY, ESQ., MICHAEL J. TIMPAnE, ESQ. and HOn. CuRTIS VOn KAnn (RET.) served as
moderators and panelists on a variety of topics.
JudGE VOn KAnn also spoke on “The Award” at a College of Commercial Arbitrators program in Hartford, CN, entitled
“Managing Your First Arbitration” on April 22, 2010.
HARVEY J. KIRSH, ESQ., JAMS, was a panelist at the May 6, 2010 program “Practical and Creative Approaches to Construction
ADR,” sponsored by the Construction Law Section of the Ontario Bar Association. His topic was “Best Practices in the Arbitration of
Construction Disputes.”
MR. KIRSH is also an Editor of “The Construction Glossary,” a new publication of the ABA Forum on the Construction Industry. The
book is scheduled to be launched at the Forum’s 2010 Fall Meeting in Miami, Florida on September 2-3, 2010. Leading construction
attorneys across the United States, including fellow GEC neutral JOHn HInCHEY, contributed to the large compilation of annotated
glossary terms.
For more information or copies of these articles, please contact jherrera@jamsadr.com.
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Notices & Calendar of eventsJAMS GLOBAL CONSt RuCt ION SOLut IONS • SPRING 2010 • PAGe 1 Wed., June 1, 2010 • Noon to 3:1 pm eD t ( am to 12:1 pm PD t)
Rapid resolution of construction claims and disputes is a construction industry imperative. This program explores
the nuances of construction’s “top ten” ADR options. You will get a clear understanding of what’s available, which
option to select in any situation, what limitations affect each option (and why each can fail), and how best to utilize
each option to achieve an early and cost-effective settlement.
The distinguished faculty are all members of the JAMS Global Engineering & Construction Group and include
some of North America’s top construction ADR neutrals:
Planning Chair Philip L. Bruner, Esq., Director, JAMS Global Engineering & Construction Group, Chicago, IL
Zela “Zee” G. Claiborne, Esq., JAMS neutral, San Francisco, CA
John W. Hinchey, Esq., JAMS neutral and Senior Partner, King & Spalding, Atlanta, GA
Harvey J. Kirsh, Esq., JAMS neutral and Co-Chair, Construction and Infrastucture Group, Osler, Hoskin &
Harcourt LLP , Toronto
Thomas J. Stipanowich, Esq., JAMS neutral and Professor of Law, Academic Director, Straus Institute for
Dispute Resolution, Pepperdine University School of Law, Malibu, CA
Registration: www.ali-aba.org/VCR01 or 00-CLe -NeWS. This interactive seminar will give you the
opportunity to submit your questions to the speakers before and/or during the program. All registrants will receive a
set of downloadable course materials and free access to the archived online program later. Tuition is $299.
Co-Sponsored by and
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Please join us for a live MCLe video webcast –
top 10 Cost-effective
Ways to Resolve
Construction Disputes
1. Partnering/project “meet and greet”
2. Structured negotiations
3. Project neutral
. Initial decision maker
. expert determinations
. Dispute review board
. Adjudication
. Mediation
. Advisory “mini-trial”
10. Binding arbitrationnewsletter Board of editors
PhiliP l. Bruner, eSQ.*
Director, JAMS Global Engineering & Construction Group
hArvey J. KirSh, eSQ.*
JAMS Global Engineering & Construction Group
JOHn J. WELSH, ESQ.
JAMS Executive Vice President and General Counsel
BRIAn PARMELEE
JAMS Vice President - Corporate Development/Panel Relations
JAMS Global Construction Solutions seeks to provide information and
commentary on current developments relating to dispute resolution in the
construction industry. The authors are not engaged in rendering legal advice
or other professional services by publication of this newsletter, and information
contained herein should not be used as a substitute for independent legal
research appropriate to a particular case or legal issue.
JAMS Global Construction Solutions is published by JAMS, Inc. Copyright
2010 JAMS. Photocopying or reproducing in any form in whole or in part
is a violation of federal copyright law and is strictly prohibited without the
publisher’s consent.
JAMS GLOBAL
CONSt RuCt ION SOLut IONS
l eading adr developments from The r esolution experts
Additional members of the
JAMS Global engineering
& construction Group
Viggo Boserup, Esq. • Hon. William J. Cahill (Ret.)
George D. Calkins, II, Esq. • Richard Chernick, Esq.*
Zela “Zee” G. Claiborne, Esq. • Robert B. Davidson, Esq.*
Linda DeBene, Esq. • Bruce A. Edwards, Esq
David Geronemus, Esq. • Kenneth C. Gibbs, Esq.*
Jesse B. (Barry ) Grove III, Esq.* • Katherine Hope Gurun, Esq.*
William E. Hartgering, Esq. • John W. Hinchey, Esq.*
Gerald A. Kurland, Esq. • HH Humphrey LLoyd QC*
Hon. Clifford L. Meacham (Ret.) • Joseph T. McLaughlin, Esq.
Roy S. Mitchell, Esq. • James F. Nagle, Esq.
Douglas S. Oles, Esq. • Donald R. Person, Esq.
Alexander S. Polsky, Esq. • Barbara A. Reeves Neal, Esq.
Carl M. Sapers, Esq. • Vivien B. Shelanski, Esq.
Thomas J. Stipanowich, Esq.* • Michael J. Timpane, Esq.
Eric E. Van Loon, Esq. • Hon. Curtis E. von Kann (Ret.)
Catherine A. Yanni, Esq. • Michael D. Young, Esq.
*GEC Advisory Board Member
JAMS Global engineering
and Construction Group
1920 Main st . • suite 300
Irvine, ca 92614
Presorted First Class
U.S. Postage
PAID
Permit No. 510
Santa Ana, CA