JAMS Global Construction Solutions Newsletter, Spring 2011
Source:
Date:
Spring 2011
Philip L. Bruner, Esq. Barbara A. Reeves, Esq., CEDS
Volume 4, No. 2 • Spring 2011
ALSO IN th IS ISSue . . .
how Neutrals Can Provide
early Case Management of
Construction Disputes
By JOHN LANDE, ESQ. . . . . . . . . . 6
evaluative Mediation
By JESSE B. (BARR y )
GROVE III, ESQ. ............. 10
JAMS launches iPhone App. ... 11
Navigating through a
Construction Project:
“California Construction Law”
REVIEw ED By LIND A DeBENE, ESQ. &
BARBARA A. REEVES NEAL, ESQ. . 12
Notices & events .......... 14
JAMS is the largest private
alternative dispute resolution
(ADR) provider in the world.
With its prestigious panel of
neutrals, JAMS specializes
in resolving complex, multi-
party, business/commercial
cases – those in which the
choice of neutral is crucial.
The JAMS Global Engineering
and Construction Group
provides expert mediation,
arbitration, project neutral
and other services to the
global construction industry
to resolve disputes in a timely
and efficient manner.
to learn more about the JAMS Global engineering and Construction Group, go to http:/ /www.jamsadr.com/construction-practice/ .
JAMS GLOBAL
CONSt RuCt ION SOLut IONS
Leading ADR Developments from The Resolution Experts
By Phili P l . Bruner, eSQ. Arbitrator, Mediator, Dispute
Resolver and Director of the JAMS Global Engineering & Construction Group
Ever since the US Supreme Court ruled in Hall Street v. Mat-
tel, 552 US 576 (2008) that parties were not legally permitted
to enlarge by agreement the scope of judicial review of an arbi-
tration award beyond the limited statutory grounds for vacatur
under the Federal Arbitration Act, lawyers and clients considering
whether to arbitrate complex disputes subject to the FAA have
explored alternative ways of acquiring a broad right of appellate review outside of
the judicial process. Clients with major cases particularly have been concerned about
getting a “de novo” review of questions of law where they later conclude that the
arbitrator “got it wrong.” Their solution has been to craft arbitration clauses calling for
appellate arbitration pursuant to JAMS Optional Arbitration Appeal Procedure.
Appellate Arbitration: the Wave of the Future
Don’t Count Courts Out —
A View from the Bench
By The h onoura Ble Mr. Ju STice r oBer T
a . Grae SSer
1
Court of Queen’s Bench of Alberta
As a current member of the judiciary in Alberta, and
as a former arbitrator and mediator in my previous law
practice, I have my own perspective on the differences
between what judges do in trials and in settlement
conferences, and what arbitrators and mediators do in their ADR processes.
Court vs. Private Dispute Resolution
I recognize that, both as a trial judge and a settlement conferencing judge
handling judicial dispute resolutions, or “JDR”s, I compete with the private sector,
who ply their skills as arbitrators and mediators. I face complaints from media-
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See “Don’t Count Courts Out” on Page 2
See “Appellate Arbitration” on Page 9JAMS GLOBAL CONStRuCtION SOLut IONS • SPRING 2011 • PAGe 2
Don’t Count Courts Out — A View from the Bench continued from Page 1
tors that we unfairly compete with
them because our services as judi-
cial settlement judges are provided
free of charge. However, I do not
seem to face complaints about the
provision of our traditional services
as a trial judge, largely because the
shortcomings of those services are
what arbitrators tout as being the
main reason to arbitrate.
Undoubtedly, arbitrators would
feel more competition from the
bench if some of the procedural, cost
and time issues could be better con-
trolled by the courts, and, as well, if
there were a specialized bench. How
likely changes in court processes will
be is a debate that has gone on since
at least Jarndyce v. Jarndyce in Dick-
ens’ 19th century England. Despite
that those familiar with litigation
decry interminable examinations for
discovery; lengthy document produc-
tion processes, usually involving the
search for marginally relevant docu-
ments and minutia from everyone
remotely connected with the litiga-
tion; and the incredibly high cost and
extended length of time occupied by
the court proceedings, any attempt
to curtail traditional processes, at
least in my jurisdiction of Alberta,
has generally been met with great
resistance.
The search for “truth and justice”
often demands leaving no stone
unturned as the parties’ rights are
determined. Access to justice, on the
other hand, demands processes that
are reasonably affordable and timely.
The twain may never meet. A resolu-
tion with full disclosure and discovery
and a trial with admissible evidence
before an impartial trial judge may
achieve the highest form of justice—
or truth finding—with many pro-
tections against error built into the
process. But at what cost? And over
what period of time? A process that
costs more than the result, or takes
so long that the result has become
moot, creates pyrrhic victories. That
is the law of diminishing returns.
On the other hand, an abbrevi-
ated process, with limited disclosure
and minimal adherence to the ac-
cepted rules of evidence, may pro-
duce an inexpensive and quick result,
but at what cost to the quality of the
resolution? Here is where the quality
of the arbitrator shines through.
My thesis is that both systems—
the court system and the private
system—can and should co-exist and
provide a continuum of processes
that will allow parties to achieve a
level of justice that is acceptable to
them. That, to some extent, requires
a “client”-based approach to the
provision of dispute resolution ser-
vices.
the Parties as “Clients”
Certainly, the parties to the dis-
pute are generally the arbitrator’s or
mediator’ s “clients”. And this means
that there are business aspects of
the relationship that require tend-
ing. The arbitrator or mediator is a
business person, providing a service.
Reputation is important. So arbitra-
tors and mediators tend to be polite
and respectful, if not somewhat
deferential, and are usually mind-
ful of the fact that, just as they are
appointed by agreement, they can
also be discharged by agreement (or
simply not selected the next time).
Significantly, arbitrators and
mediators work in private. There is
almost no scrutiny of their decisions
or activities, short of judicial review
or limited appeals in the case of ar-
bitrators. The public will never learn
of their work, nor will the press or
academics.
Arbitrators or mediators who mis-
conduct themselves, or who are
incompetent, may lose their profes-
sional status as attorneys or be struck
from the roles of institutional ADR
service providers, but they may still
carry on their practices nonetheless.
Different Processes
Contrast this with the position of
a judge, who is generally selected by
the court’s scheduling coordinators.
Judge-shopping in most jurisdictions
is a thing of the distant past. The
trial judge may not be known until
he or she actually walks into the
courtroom to preside over the trial.
The parties have limited or no control
over whom will be selected to resolve
their dispute. There is no guarantee
that counsels’ worst nightmare—
Judge Bullingham, the “Mad Bull” of
Rumpole of the Bailey fame—will not
walk through the judicial entrance to
the courtroom.
The judge’s duties are not owed
only to the parties, but also to the
system and the public. One only
has to look at the principles of ju-
dicial ethics, namely independence,
impartiality, diligence, fairness and
equality, to recognize that judges
owe duties and loyalties not just to
the parties that appear before them,
but to many other stakeholders. The
work of judges is publicly scrutinized; JAMS GLOBAL CONStRuCtION SOLut IONS • SPRING 2011 • PAGe 3
courtrooms are open to the public
and the press; and judges’ decisions
are criticized publicly, politically and
academically. This accountability
means that, in the most extreme
degree, judges may be removed from
office for misconduct or incompe-
tence.
Issues About
Commercial Arbitrations
Yet the landscape may be chang-
ing. Arbitrations in particular are
more frequently being criticized for
being too costly, taking too long and
being too much like trials. They are
no longer being seen as the practical
alternative to litigation. Commercial
entities who fled from litigation in fa-
vor of arbitrations are increasingly be-
coming disenchanted. According to
some, arbitrations have been ruined
by lawyers that act as arbitrators and
cling to their training with procedural
and evidentiary rules in conducting
arbitrations. And the lawyers who
represent clients in arbitration pro-
ceedings are loathe to abandon the
comfort and familiarity of extensive
record production, discovery and
pre-trial procedures to speed up the
process and reduce its costs.
Whatever the reasons, the bloom
is, to some extent, off the arbitration
rose. Some counsel and parties were
previously nervous about arbitra-
tion because of the perception that
arbitrators (particularly non-lawyer
arbitrators) were more inclined to
“split the baby” than were judges,
and were more likely to find a middle
ground and avoid making difficult or
hard decisions. After all, arbitrators
want to do equity, and look to their
reputation for fairness as a selling
point for future work. That is a point
hotly contested by arbitrators, and
there are undoubtedly many arbitra-
tors who claim that they can be and
are every bit as tough as the most
hard-nosed judge in making adverse
credibility findings and rendering
decisions that may have devastating
consequences on one of the parties.
Of course there are judges who can
be criticized for the same compro-
mising or soft-hearted inclinations.
But judges are frequently called on
to make difficult credibility findings,
give harsh remedies (such as injunc-
tions or contempt findings) and find
clear winners and losers.
From my own self-reflection, after
some years as a private arbitrator
and now some years as a judge, I
tend toward the view that arbitra-
tors are more client-friendly than are
judges. I believe that I have been less
inclined to find middle ground, or
See “Don’t Count Courts Out” on Page 4
Undoubtedly, arbitrators
would feel more
competition from the
bench if some of the
procedural, cost and time
issues could be better
controlled by the courts,
and, as well, if there were
a specialized bench. How
likely changes in court
processes will be is a
debate that has gone on
since at least Jarndyce v.
Jarndyce in Dickens’
19th century England. JAMS GLOBAL CONStRuCtION SOLut IONS • SPRING 2011 • PAGe 4
throw bones to the otherwise losing
party as a judge, than I was as an
arbitrator. Arbitrators work in a more
comfortable arena where their deci-
sions are less likely to be appealed
or reviewed, and they do not face
scrutiny from the public, academ-
ics or their colleagues. Arbitration
awards are published for and to the
parties, and unless there is a judicial
review or appeal of the decision, the
decision remains private, confidential
and for all practical purposes, buried.
That is not to say that I regret any of
the decisions I made as an arbitra-
tor, or feel guilty about any of them.
But I was working in a different
environment, where the rules of evi-
dence were relaxed and the level of
scrutiny on me was much different.
I was more concerned about giving
a fair result than a result that would
survive judicial review or scrutiny or
even public scrutiny because of the
confidentiality of the process.
Power Advantage of Judges
The big advantage the judge
has over the private mediator is the
power of the office. Judges, whether
good, bad or indifferent, are per-
ceived by most people as having
power . Clients have little appreciation
of the differences between or among
judges. There is something powerful,
and cathartic, about “telling it to the
judge”, or having a judge involved in
the resolution of a dispute. Parties
feel like they have had their day in
court, and have been heard. Evalu-
ations by a judge, whether through
non-verbal communication, discus-
sions of risk, expressing preferences
for the other party’s position, or
providing an opinion, generally have
a strong effect on counsel and their
clients.
Private mediators do not have
that power. It is easier for counsel
to dismiss a mediator’s evaluative
interventions than a judge’ s, and that
is one reason why clients sometimes
pick a former judge as a mediator.
The additional benefit of the judi -
cial settlement process is cost—you
don’t have to pay the judge but you
do have to pay private mediators.
This can be significant in smaller
cases, or for financially-challenged
parties; but in my view, the main
reason for the popularity of judicial
settlement conferencing is the clout
a judge brings to the process.
Concerns Over the Judge’s Role
Opinions on the law, or the
likely outcome of the case, may not
be treated with as much weight
coming from a private mediator.
But the judge’s (or former judge’s)
pronouncements will likely have a
greater effect. How does the judge,
in an informal setting, where the
parties are making representations in
conversation rather than under oath
and without the rules of evidence
being applied, give an opinion that
may be relied on?
Another problem is where one
party is under-represented and it is
clear that there is an inequality of
skills at the settlement conference.
A private mediator may be able to
shrug, and take comfort in the fact
that party autonomy allows a party
to choose a less-skilled lawyer and
take unreasonable or hopeless posi-
tions. But before a judicial mediator,
how does that impact on the judicial
ethic of equality? I recognize that the
courts sometimes find themselves
in the position of presiding over a
case where one of the lawyers is
performing in a sub-standard man-
ner. The judicial role is a difficult one
in such circumstances. How far does
the judge go in trying to level the
playing field? Can we intervene to
protect the unsuspecting client from
unskilled lawyering? We may have
a duty to do so where there is true
incompetence, but incompetence is
not defined by a bright-line scale.
And what about fairness to the
party who is being well represented?
The appearance of judicial interven-
tion can be viewed very negatively.
This is a common problem where one
of the parties is self-represented. The
represented client must indeed feel
very uncomfortable when the judge
is giving the appearance of helping
the self-represented party. Judges
worry about these matters; private
mediators may not.
What about the imprudent settle-
ment? How does a judge preside over
a settlement conference where he or
she has significant concerns that the
settlement agreed to is imprudent
for one of the parties? How does
that impact on public confidence
in the administration of justice? Or
diligence? Most people will credit
the judge with a significant role in
the settlement process if he or she
is presiding; people will be quick to
shift the blame when the settlement
is the subject of buyer’s remorse the
next day, or the question to one of
the settlement parties is “You did
what?” or “You only got that little?”
Private mediators may not have such
Don’t Count Courts Out — A View from the Bench continued from Page 3JAMS GLOBAL CONStRuCtION SOLut IONS • SPRING 2011 • PAGe 5
concerns, as party autonomy prevails,
and they may be seen as less influ-
ential in the process than a presiding
judge.
Advantages of
Private Mediations
There are also cases that are bet-
ter suited to private mediation. While
there are many skilled judicial media-
tors, and many of the newer judicial
appointments may come from the
ranks of former mediators and ar-
bitrators, the skill level of private
mediators is strong. Private mediators
have greater flexibility with respect
to their time. You are not limited
to the skills available in a particular
jurisdiction: mediators travel, and it
is common for well-known media-
tors from across the United States
and Canada to offer their services in
many jurisdictions. Judges are limited
to their home jurisdiction.
Advantages of
Court Mediations
But there are also many cases that
are well suited to a judicial mediation
or settlement process. The parties
may feel that they have had their day
in court if they have participated in
a process presided over by a judge.
Evaluative interventions or processes
are perhaps better conducted using
judges or former judges because of
the weight given to a judicial opinion
as opposed to a mediator’s opinion.
Spectrum of Alternatives
In my view, there is plenty of
scope for all processes. Dispute
resolution through the traditional
litigation route is subject to all sorts
of criticisms and concerns -- some
legitimate, some exaggerated. Coun-
sel and clients need to strategize as
to the most appropriate means of
dispute resolution for their particu-
lar dispute and their unique needs
and interests. Unless a precedent is
needed by one of the parties (which
is rare), settlement is generally prefer-
able to litigation. Risks are managed
in the settlement process, rather than
rolling the dice by going to trial.
Private mediations may be at
one end of the spectrum of choices;
trial at the other. With facilitative
processes, mediations are available,
as are facilitative judicial settlement
conferences. The parties retain con-
trol—they determine whether the
matter should be settled or not. For
evaluative processes, a rights-based
judicial settlement conference may be
the best choice, if the parties want a
voluntary, non-binding process. They
get the benefit of a judicial opinion of
sorts, without being bound to accept
it. At the fully evaluative end, there
are private arbitrations and trials.
Each of those has its advantages and
disadvantages. But in both cases, the
parties essentially lose control of the
process, and are bound by the deci-
sion or opinions of a third party.
A hybrid is a binding judicial
dispute resolution process. This re-
sembles the mediation-arbitration
option sometimes used in the private
sector. The mediator attempts to fa-
cilitate a settlement; but, if that is not
forthcoming, the process is turned
into an arbitration, and the mediator
gives a binding decision on the issues
that have not been agreed along the
way.
In any event, there is generally a
process for all disputes and all dis-
putants. Some will require a binding
process that takes the decision-
making out of their hands (or re-
sponsibility). Others will keep control
and settle when the time is right, and
when a settlement meets their needs
or interests. Private arbitrators and
private mediators will continue to be
in demand, and will provide valuable
services.
epilogue
The common law does not prog-
ress when individual cases are re-
solved with arbitrations and media-
tions. When parties shun the courts,
the development of laws is largely
left to the legislators. The disputes
that are resolved behind closed doors
do not add to the jurisprudence,
leaving the common law behind the
realities of the business world. One
could argue that there is a public
duty to litigate and participate in the
development of the common law,
but that is undoubtedly a hollow
argument with private disputants.
Perhaps governments and mu-
nicipalities (and possibly the media)
recognize an obligation to litigate
in the public interest, but that is an
argument unlikely to succeed with
private disputants.
The courts are not the be-all and
end-all of dispute resolution. But they
remain a viable and practical choice
in many commercial disputes, and
they should not be rejected out of
hand.
1. The opinions set out in this article are those of
the author, and do not represent the views of
the Alberta Court of Queen’s Bench.JAMS GLOBAL CONStRuCtION SOLut IONS • SPRING 2011 • PAGe 6
By John l ande, eSQ.
This article describes how neutrals
can provide early case management
and resolution services to help parties
in construction disputes resolve them
more efficiently.
In an all-too-common pattern in
litigation-as-usual, settlement comes
only after the lawyers engage in
adversarial posturing, the litigation
process escalates the original conflict,
the parties’ relationship deteriorates,
the process takes a long time and a
lot of money and none of the parties
is particularly happy with the settle-
ment. Almost any disagreement can
lead to an escalation of the conflict
that diverts energy away from the
critical tasks needed to resolve dis-
putes efficiently.
Although some lawyers enjoy
this process and make a good living
from it, many would prefer to use a
more constructive and efficient pro-
cess. They know that most cases will
eventually settle—often only after
a process that takes too long and
costs too much—but they often feel
powerless to steer clients toward a
more productive path.
They are often trapped in a
“prison of fear” which locks them
into unnecessarily long and expensive
litigation. They fear that the other
side would interpret the mere sug-
gestion of negotiation as a sign of
weakness and an invitation to take
advantage of their clients. Logically,
this is absurd because even lawyers
with strong cases should have an
interest in an early settlement under
favorable terms. But this fear grips
much of the legal profession, none-
theless.
Lawyers sometimes do escape
from their prison of fear. They help
clients assess the benefits and risks of
negotiation, let the other side know
of their interest in negotiation (but
willingness to litigate if necessary),
and cooperate with the other side
in a constructive early negotiation.
Even when they aren’t sure that they
can trust the other side, they may
decide that trying early negotiation
is better than the alternatives, such
as litigation-as-usual or capitulation.
Early negotiation can be particu-
larly helpful in construction disputes,
where there are often multiple par-
ties, numerous claims and counter-
claims and complex technical issues.
Without a lot of cooperation, it is
easy for everyone to get caught up
in an escalating conflict that gets
resolved only after lengthy, bitter and
expensive litigation.
Although lawyers can sometimes
initiate early negotiation without
engaging a third party to manage the
process, sometimes a neutral may be
necessary or extremely helpful.
Laying the Foundation
for Dispute Resolution
How can neutrals help parties
1
build an escape hatch from the prison
of fear? Neutrals can help them plan
and manage the dispute resolution
process and can keep it “on track”
by effectively dealing with adversarial
exchanges that threaten to derail it.
Providing confidence in the process
can be particularly helpful at the
outset, when the parties may be
especially afraid and distrustful.
Neutrals can provide additional
confidence by reassuring parties that
they can leave the process at any
time they believe it is no longer in
their interest to continue. If parties
do end the process and proceed in
litigation, they probably will not have
lost very much considering that most
of the information they will provide is
probably legally discoverable. Indeed,
even if an early case management or
mediation process does not result in
agreement, it can help the parties
focus on the key issues and avoid
wasteful procedures when they do
litigate.
Professor Lande is Director of the LL.M.
Program in Dispute Resolution and Isidor
Loeb Professor at the University of Missouri
School of Law. E-mail him at landej@
missouri.edu or view his website at http://
www.law.missouri.edu/lande/.
how Neutrals Can Provide early Case
Management of Construction DisputesJAMS GLOBAL CONStRuCtION SOLut IONS • SPRING 2011 • PAGe 7
Early in the case, neutrals can
arrange meetings with counsel to
identify the information that each
side needs to reasonably evaluate the
matter. Neutrals can emphasize that
by voluntarily sharing information,
parties signal that they have a high
degree of confidence in their case
and an interest in negotiating a fair
agreement.
Neutrals can manage the process
of exchanging information to mini-
mize the risk of exploitation that par-
ties may fear. For example, neutrals
can arrange for each side to begin by
exchanging basic information that is
clearly necessary and discoverable.
Following initial exchanges, they can
decide what specific addi-
tional information would
be necessary. Neutrals can
serve as “discovery escrow
agents” to protect each
side with simultaneous
exchanges of information
if this would help build
confidence.
Neutrals can also help
arrange assurances about
the accuracy and com-
pleteness of information.
If desired, each side can
provide information under
penalty of perjury, provid-
ing similar assurances as in formal
discovery. Moreover, neutrals can
help lawyers agree to limited formal
discovery to obtain information from
people who are not parties in the
dispute. If the parties settle a dis-
pute, neutrals can ask if parties want
language in settlement agreements
making representations about mate-
rial facts that could be the basis for
remedies for fraud.
Sometimes, the critical informa-
tion needed to promote settlement
involves facts that are not legally
discoverable such as the parties’ key
interests, settlement priorities, busi-
ness plans and expectations about
the future. If the parties mediate,
each side can provide such informa-
tion confidentially to the mediator,
with assurances that it will be used
carefully to promote settlement with-
out disclosure except as authorized.
In construction disputes, experts’
analyses are often critical elements
in negotiation and litigation strate-
gies. Neutrals can help parties avoid
expensive and risky “battles of the
experts” by helping parties hire
joint neutral experts. This substan-
tially reduces the cost and risk of
using separate partisan experts for
each side. Neutrals can manage the
process of selecting and hiring the
neutral experts. This includes help-
ing parties decide what information
will and will not be provided to the
experts, what analyses the experts
will provide, whether they could be
called as witnesses in litigation, or
whether their work-product could
be introduced in evidence. Arrange-
ments for engaging neutral experts
might include provisions for obtain-
ing additional expert input under
certain circumstances, such as if the
results are outside a specified range.
Considering all the tasks that may
be involved leading up to the dispute
resolution phase of the process,
neutrals can help schedule various
steps in the process, considering
various critical-path sequencing is-
sues. Neutrals can also help design
multi-step dispute resolution formats
so that parties start with negotiated
processes like mediation and arrange
for adjudicative processes like arbitra-
tion if they do not reach agreement
within a specified period.
If parties do adjudicate the dis-
pute, neutrals can help parties agree
to narrow the issues to be
argued, identify expert
witnesses to be called,
share exhibits and gener-
ally inform each other of
their plans. Neutrals can
also elicit an agreement
by the parties to focus
arguments on the merits
of the dispute and avoid
tactics that unnecessarily
aggravate the conflict.
In addition to managing
specific pr ocedural issues
leading up to the dispute
resolution phase, neutrals
can provide a great service by pro-
moting good working relationships
between the lawyers. Arranging a
face-to-face meeting at the out-
set, perhaps over a meal, can help
lawyers get to know each other as
individuals, not merely as “opposing
counsel.” At these initial meetings,
the neutral and lawyers may spend
much of their time getting to know
each other, not just discussing the
details of the case. When lawyers and
See “How Neutrals . . .” on Page 8JAMS GLOBAL CONStRuCtION SOLut IONS • SPRING 2011 • PAGe 8
neutrals have such personal connec-
tions, they are more likely to resolve
problems in a case more easily than
if they maintain a professional arms-
length relationship.
A Robust Role for
Neutrals in Resolving
Construction Disputes
Of course, neutrals participate
directly in the ultimate dispute
resolution process itself
by providing a range of
services such as mediation,
evaluation and arbitration.
If neutrals have managed
the process of preparing
parties to get ready for the
dispute resolution process,
it is a logical extension to
help the parties design
that process. Neutrals can
manage the logistics in ar-
ranging for suitable space,
audio-visual technology,
refreshments and related
matters. In some cases, key
individuals may not be able
to attend in person and the neutrals
can arrange for video- or teleconfer-
ences if appropriate.
More substantively, neutrals can
orchestrate the exchange of infor-
mation and documents specifically
needed for the process, attendance
(and, possibly, non-attendance) of
particular individuals, participation of
experts, preparation of the parties to
have realistic expectations about the
process, scheduling of the meetings
or hearings, facilitating procedural
agreements about the process and
arranging for procedural agreements
to be documented, as appropriate. In
coordinating with counsel before the
mediation or hearing convenes, neu-
trals can specifically discuss potential
problems in the process, ideas for
making it work successfully and an
agenda or schedule for the process.
In mediations, neutrals may help law-
yers prepare by discussing with them
the parties’ substantive concerns.
Mediators can also arrange for the
lawyers to coordinate the drafting of
boilerplate language of a settlement
agreement before convening the
mediation session. This helps avoid
last-minute blowups over issues that
were supposedly not controversial.
If these issues are not addressed in
advance, they may arise very late in
a mediation, when everyone is tired
and wants to go home. Or, if lawyers
take a memorandum of agreement
from a mediation and plan to draft a
full settlement, disputes over boiler-
plate can lead to extensive delays
and even kill a deal. Negotiating the
boilerplate in advance can help par-
ties start the mediation session with
a positive expectation of settlement.
If lawyers negotiate the boilerplate
language before the mediation ses-
sion and identify disputes over the
language, the mediator can help
resolve the disputes in a timely way
as part of the mediation.
Conclusion
The development of a market for
a broad range of neutral
case management services
can help parties begin and
end their dispute resolu-
tion processes sooner and
more efficiently.
In contrast to the move-
ment to “unbundle” law-
yers’ services by offering
clients the option to re-
tain lawyers to perform
selected services “à la
carte,” this article recom-
mends that neutrals offer
to “bundle” a broader
range of case manage-
ment services.
2
Certainly,
some neutrals already do more
than “helicopter” in to mediate or
arbitrate a case. Many providers
and provider organizations offer
administrative and logistical services
in managing cases.
Sometimes, however, parties
would benefit from a broader range
of case management services, partic-
ularly those involving the professional
skills of experienced neutrals de-
scribed above. Enterprising neutrals
can provide great value by offering
a wider range of services, à la carte
how Neutrals Can Provide early Case Management continued from Page 7JAMS GLOBAL CONStRuCtION SOLut IONS • SPRING 2011 • PAGe 9
or as part of more-or-less standard
packages of services. Just as people
can choose from various combina-
tions of many products and services,
ranging from bare-bones to five-star,
neutrals might develop tiered levels
of service to satisfy different clients’
needs. If a substantial number of
neutrals offer such services, parties
and lawyers are likely to see them as
normal and desirable—and then buy
them.
Obviously, the parties need to
compensate the neutrals for these
case management and resolution
services, but neutrals may be able
to provide the services more eco-
nomically than the parties’ lawyers.
Moreover, having neutrals provide
these services gives greater assurance
that no one will try to gain some ad-
vantage from making the procedural
arrangements. And it also permits a
fair allocation between the parties of
the case management costs.
In an ideal world, parties in con-
struction disputes would resolve all
their disputes without lawyers and,
when they do retain lawyers, resolve
them without hiring neutral dispute
resolution professionals. This isn’t
an ideal world. Parties sometimes
do need to hire lawyers and neutral
dispute resolution professionals,
especially in complex construction
disputes. In these situations, neutrals
can provide great benefit to par-
ties, courts and society by offering
extensive early case management to
supplement their dispute resolution
services.
1. References to parties include their lawyers un-
less otherwise indicated by the context.
2. Hon. Frank Evans uses the term “ADR man-
agement” referring to a similar concept. See
Frank G. Evans, The ADR Management Agree-
ment: New Conflict Resolution Roles for Texas
Lawyers and Mediators, HOUS. LAW., Sept./
Oct. 2007, at 10.
The Procedure empowers the parties to pick an Appeal Panel
comprising one or three arbitrators to review, at the request of ei-
ther party, an arbitration award issued by a panel below. Paragraph
(D) of the Procedure articulates the standard of review as follows:
“The Appeal Panel will apply the same standard of review that the
first-level appellate court in the jurisdiction would apply to an appeal
from the trial court decision.” In essence, an Appeal Panel reviewing
an arbitration award subject to the FAA exercises the same standard
of review as that of a US Court of Appeal reviewing a decision of a
US District Court. Thus, an Appeal Panel, inter alia, may review “de
novo” all questions of law, and may issue an appellate award that
affirms, modifies or reverses the award below prior to presentation
of the Appeal Panel’ s award for judicial confirmation under the FAA.
In a recent JAMS appellate arbitration proceeding, two parties
not satisfied with an award issued by a non-JAMS arbitrator on
dispositive issues, filed an appeal with JAMS under its Optional Arbi -
tration Appeal Procedure. The stipulated record on appeal included
key documents and extensive briefing on seven critical legal issues.
The parties selected three JAMS arbitrators with special expertise in
construction law to sit as an Appeal Panel. The Panel reviewed “de
novo” the parties’ appealed legal issues on the stipulated record
and briefs without a further hearing, and issued a final award that
affirmed in part and reversed in part as a matter of law the award
issued by the arbitrator below. The arbitration thereby was finally
concluded. The cost of the appellate arbitration review itself was
quite reasonable, and conferred the added benefits of (1) obviating
further extensive expensive arbitration hearings below, (2) virtually
assuring that the award, having already been subject to appellate
review, would be confirmed perfunctorily by the court under the
FAA, and (3) providing the critical “de novo” appellate review of legal
issues by selected experts without regard to the statutory limitations
of the FAA.
No longer must parties opt for litigation over arbitration in order
to preserve the important right of appellate review. Parties now
simply may provide in arbitration clauses and agreements that each
party has a right to appeal an arbitration award to an Appeal Panel
pursuant to JAMS Optional Arbitration Appeal Procedure. A copy
of the Procedure may be found at http://www.jamsadr.com/rules-
clauses/.
Mr. Bruner is a JAMS arbitrator, mediator and project neutral based in Chicago.
Email him at pbruner@jamsadr.com or view his Engineering & Construction
bio online.
Appellate Arbitration
continued from Page 1JAMS GLOBAL CONStRuCtION SOLut IONS • SPRING 2011 • PAGe 10
Mediation to resolve construction
disputes, in my experience, began to
gain acceptance in the late 1970’s.
By the time of my retirement from
practice in 2006 it had become a
feature of almost all cases. During
the course of those 25 years, the
style of mediation has evolved from
facilitative to evaluative, so much so
that some mediations now resemble
non-binding arbitrations. One of my
recent experiences as a mediator
illustrates the point.
Back in the day, a mediator was
chosen for a variety of reasons in-
cluding primarily mediation skills,
persuasiveness, ability to intuit weak-
nesses and stature. But the mediator
was not expected to be skilled in
construction law or claims tech-
niques. In fact, there were not any
who possessed heavy construction
claims experience from prior practice,
although there were some who were
known for experience in mediating
construction matters. That did not
matter. Since the mediator was not
a decision maker, what he thought
of the merits of the case was of little
consequence. His job was to move
the parties toward an acceptable
middle ground based on what they
thought of the merits of the case. In
doing so, he could be counted on to
tell both parties that their positions
were weak. I cannot remember a
single case in which the mediator
told one of my clients to stand fast
based on the quality of the client’s
position. Nor can I remember a single
case in which the mediator stated his
own opinion on the correct settle-
ment value.
In preparation for one of these
mediations, lawyers would caution
their clients that persuading the
mediator was not the game to play.
Persuading the other side with the
help of the mediator was. And clients
would be warned not take too seri-
ously the mediator’ s dire predictions.
He could not, after all, be expected
to have a very informed view because
there was usually almost no pre-
negotiation education opportunity.
Most mediators did not want briefing
beyond a five-page or so statement
of position that would be read the
night before. The mediation itself
was a one-day (and sometimes night)
affair. It was essentially a quick, high
pressure, last chance for the clients
to come to their senses. Mostly it
worked so long as the clients were
commercially sophisticated and rea-
sonably well advised by counsel.
But it must have been less than
satisfying because a gradual trend
developed towards selection of
mediators with substantive skills
to perform evaluative mediations,
sometimes featuring a mediator’s
proposal. At JAMS, members of the
Global Engineering and Construction
Group see quite a bit of this now,
which brings me to my illustration.
A while ago I was asked to medi-
ate a particularly tough case involv-
ing renovation of an historic public
building. Visualize the renovation of
Grand Central Terminal in New York
City for a project analog. The project
went bad from the start. It finished
over a year late. Asbestos was ev-
erywhere it should not have been
in quantities that were unpredicted.
Unforeseen hidden conditions were
discovered daily and the Requests
for Information (“RFI”) were at one
point running at a level of six per
day. As working conditions became
more chaotic, some subcontractors
ceased cooperative coordination
with the other trades and began
seizing opportunities to install their
work regardless of impact on orderly
sequencing. With the job running
increasingly late, the general con-
tractor applied unremitting pressure
on the subcontractors, leading to
acrimony and charges of misman-
agement. The RFI and change order
procedures were too cumbersome
for the owner and its design team
to keep up with what was happen-
ing in the field. This resulted in cash
flow strangulation of the contrac-
tors (some did not survive). By the
time of substantial completion, tens
of millions of dollars in claims were
unresolved and ultimately denied.
Litigation ensued between the
general contractor and the owner,
and nine subcontractor suits were
evaluative Mediation By JESSE B. (BARRY) GROVE III, ESQ.JAMS GLOBAL CONStRuCtION SOLut IONS • SPRING 2011 • PAGe 11
consolidated. The owner asserted a
substantial counterclaim for defec-
tive work and liquidated damages.
Active litigation at huge expense
consumed the next four years. The
parties and their counsel became in-
creasingly polarized. T wo attempts to
commence mediation were stillborn.
Since the main parties were highly
sophisticated and experienced, and
were guided by first class construc-
tion counsel, everyone knew it was
unthinkable to send the case to trial,
but no one had any faith that a me-
diation could succeed.
Enter the Mediator. It quickly
became apparent that the parties
desired an “evaluative mediation”
meaning that they required the
Mediator to analyze and evaluate
the claims to the point that credible
predictions, with supporting ratio-
nale, of the outcome on the parties’
positions—claim by claim and issue
by issue—could be formulated for
the guidance of the parties in the
final negotiation. T o that end, during
the first several months the Mediator
spent something over 60 hours of
independent review and research of
the parties’ positions and pre-medi-
ation submissions and court filings.
Between July of one year and March
of the next, the Mediator spent over
80 hours in private meetings with
the parties to probe and analyze the
strengths and weaknesses of their
positions. There followed, during
April and May, joint meetings be-
tween the Mediator and the parties
wherein presentations of positions by
each party were made for the benefit
of the Mediator and the other par-
ties (95 Mediator hours). Finally, the
Mediator and the parties spent about
70 hours in negotiations between
June and August. There has rarely,
if ever, been a more painstaking and
thorough mediation.
It should be noted that the parties
were required in the course of this
mediation to make full disclosures
of information deemed by any party
to be necessary for fair evaluation.
Books of account were made avail-
able and breakdowns and audits
were disclosed. “Total Cost” and
“Total Time” methodologies were
deemed unacceptable. If one party
suspected that an event or a side deal
was in play, then that was chased
down. Full disclosure of expert
opinions, including detailed reports
and presentations, was achieved. By
the end, the Mediator and the par-
ties were satisfied that no one was
“hiding the ball.” This was extremely
important because the parties initially
entered the mediation substantially
misinformed about certain facts de-
spite four years of discovery.
In the end, it worked. The parties
found common ground. For this par-
ticular case, this was the only style of
mediation that had any chance. For
most cases, it is a style that ought to
be considered.
Mr. Grove is a JAMS mediator,
arbitrator, and project neutral based
in Washington, DC. Email him at
bgrove@jamsadr.com or view his
Engineering & Construction bio
online.
Introducing the JAMS App—the first
ADR App for the iPhone and iPad
In our continuous effort to provide the best service to our clients, we
are proud to announce the first ADR App developed for the iPhone and
iPad. The JAMS App is intuitive, easy to use and free to download from
Apple’s App Store.
The JAMS App allows busy attorneys to view and/or download a neu-
tral’s bio, case manager and complete contact information at the touch
of a button. You can tap to call or email any JAMS office.
You can also search and map to any of the more than 20 JAMS Reso-
lution Centers. JAMS newsletters, press releases and other articles are
available through the JAMS App as well.
Download your free JAMS App today by clicking on the App Store and
searching for “JAMSApp.”JAMS GLOBAL CONStRuCtION SOLut IONS • SPRING 2011 • PAGe 12
Notice to construction lawyers
and construction industry profes-
sionals: this is a book you need on
your desk. The 2011 California
Construction Law (17th Ed.) is an
indispensable guide to construction
law in California. With over 1100
pages, the book is a thorough and
up-to-date resource, containing
14 chapters and 10 appendices,
covering every step of a construc-
tion project. The book updates the
prior edition (and supplements) and
includes substantially expanded sec-
tions about insurance, indemnity and
construction defect issues.
California Construction Law is
organized much as one would build
a project, with chapters dealing with
pre-construction issues, construction
issues, disputes, remedies, insurance
and several specialty subjects. The
two authors—Kenneth Gibbs, a
full-time JAMS neutral, and Gordon
Hunt, a member of Hunt Ortmann
Palffy Nieves Lubka Darling & Mah,
Inc.—are both leading authorities
on construction law and litigation in
California. They take the reader by
the hand and thoroughly explore,
step-by-step, everything one ought
to know about California construc-
tion law.
The best way to approach this
book is the way you would read a
good novel. Sit back, sip your favorite
beverage and open the book. First,
check out the table of contents to get
an idea of where the story is going.
Reading through just the table of
contents (both the summary contents
and the detailed contents at the be-
ginning of each chapter) is enough to
educate anyone on the issues lurking
at whatever stage of construction
with which you might be concerned.
Are you concerned about licensing?
Chapter 1 covers everything from
the license requirement through
disciplinary action, types of licenses,
issues regarding unlicensed contrac-
tors and subcontractors and licensing
of construction managers, to name
a few. Chapters 2 and 3 continue to
lay the groundwork with in-depth
instruction on issues that arise in
connection with bidding for public
and private work, and, once you
have gotten the bid, the important
considerations surrounding prepara-
tion of construction contracts.
The excitement builds with Chap-
ters 4 and 5: breach of contract by
the owner or contractor. Yes, dear
reader, it is an unfortunate truth that
not all construction contracts, no
matter how carefully drafted, result
in happily completed constructed
projects. The authors chronicle ev-
erything that can go wrong. Breaches
by the owner for failure to make pay-
ment, delay, defective plans, aban-
donment, failure to grant jobsite ac-
cess, acceleration, interference with
the contractor’ s performance, failure
to approve shop drawings, failure to
approve and process change orders
and change order requests, failure
to inspect and approve work on the
critical path, failure to deliver owner-
furnished equipment and finally, as
the tension builds to the breaking
point, wrongful termination and
ejection of the contractor from the
job. Then of course there follows,
in depth, the damages that may be
recoverable for such breaches.
Turn-about being fair play, the
authors examine the problems of
breach of contract by the contractor:
failure to perform the work accord-
ing to the plans and specifications,
and failure to complete the work
(abandonment). Damages, offsetting
backcharges and the rules covering
remedies for latent and patent de-
fects, as well as violations of building
codes bring the chapter to a close.
Chapters dealing with construc-
tion claims (Chapter 6), scheduling
and proof of delay claims (Chapter
7), and expanding liability in the
construction industry (Chapter 8)
provide the plot development so
necessary to a good book. First there
is the background, then the crisis,
then the development that keeps the
reader turning pages. These chapters
Navigating through a
Construction Project:
“California Construction Law”
Reviewed by LINDA DeBENE, ESQ. and BARBARA A. REEVES NEAL, ESQ.JAMS GLOBAL CONStRuCtION SOLut IONS • SPRING 2011 • PAGe 13
provide not only an in-depth analysis
of claims for delay, disruption and
acceleration, but also the practical
“how-to” of proving and defending
these claims, including the use of
forensic schedules.
Chapters 9-11 provide important
information about statutory rem-
edies, including mechanics liens,
stop notices and bonds on public and
private works, as well as Miller Act
remedies. Think of this as character
development filling out the story. Not
the most exciting stuff, but so very
important to any construction proj-
ect. These chapters are to the point
and include valuable analyses of the
very latest of developments in liens
and releases.
The authors then introduce two
interesting characters, bankruptcy
(Chapter 12) and home improvement
contracts (Chapter 13). Bankruptcy,
the alligator in the bathtub that can
ruin any project, is a problem any
time, but especially in today’s eco-
nomic climate. The authors carefully
walk through what business people
and their attorneys need to know
about how to deal with the bank-
ruptcy of another party to a construc-
tion contract. Home improvement
contracts arising, as they often do,
out of the efforts of home solicitation
salespersons, are subject to abuses
of the law by certain contractors.
Described are the resultant to very
strict requirements, misdemeanor
penalties and fines (thus introducing
the crime aspect of the story). The
authors provide detailed discussion
of the statutory requirements and
case law involving home improve-
ment contracts, from how to prepare
such contracts to issues of rescission,
arbitration and breaches.
The book ends not with a cli-
max but with resolution: alterna-
tive dispute resolution. Arbitration,
mediation and other types of ADR
are surveyed in Chapter 14. This
is recommended reading to those
who would prefer not to spend their
days pursuing their legal rights in
an oppressive and expensive court
environment or a poorly managed
arbitration.
A reference to the JAMS Optional
Expedited Arbitration Procedures at
www.jamsadr.com/rules-clauses/
and the College of Commercial
Arbitrators Protocols for Expedi-
tious, Cost-Effective Commercial
Arbitration at www.thecca.net/
CCA_Protocols.pdf would have
been useful here, to remind readers
that arbitration can be as efficient
and cost-effective as the parties (and
their selected arbitrators) make it.
For those involved in California
construction law (or for those practic-
ing in other jurisdictions that some-
times look to California construction
law for guidance) this book is a must.
A constructive suggestion: you know
your favorite book that you want
always to carry with you? Could we
get it on CD or better yet, a thumb
drive?
Ms. DeBene is a full-time mediator,
arbitrator, special master, and proj-
ect neutral with JAMS in Northern
California. Email her at ldebene@
jamsadr.com or view her Engineering
& Construction bio online.
Ms. Reeves is a full-time mediator,
arbitrator, special master, and proj-
ect neutral with JAMS in Southern
California. Email her at breeves@
jamsadr.com or view her Engineering
& Construction bio online.
three people were at work
on a construction site.
All were doing the
same job, but when
each was asked what
the job was, the answers
varied. Breaking rocks,
the first replied.
earning my living, the
second said. helping
to build a cathedral,
said the third.JAMS GLOBAL CONStRuCtION SOLut IONS • SPRING 2011 • PAGe 14
NOtICeS & eVeNtS
GeC NeutRALS ReSOLVe AN ARRAy OF CONStRuCtION DISPuteS
• Zela “Zee” G. clai Borne , eSQ. was sole arbitrator with respect to a claim by a developer against a contractor
relating to a $12.5 million solar energy project in Arizona, involving 45,000 ground mounted photovoltaic panels.
• Kenne Th c. GiBBS, eSQ. mediated a major claim between a performance bond surety of a defaulted general
contractor and a municipality in Arizona regarding the construction of a waste water treatment plant.
• John W. h inche Y, eSQ. is serving as an arbitrator on a three-member panel in connection with an international
dispute between a contractor and the owners and developers of a resort hotel in Mexico. John is also serving as chair of
an arbitration tribunal hearing a contract termination dispute between an international contractor and a U.S. domestic
railway company, involving a long-term contract for the maintenance and repairs of a fleet of railway locomotives.
• h arve Y J. Kir Sh, eSQ. was sole arbitrator in connection with multiple claims arising out of the dismantling, demoli-
tion, and deconstruction of structures at a major gold mine located north of Lake Superior. Harvey is also sole arbitrator
in connection with a dispute between a government agency and a general contractor relating to the interpretation of a
system for evaluating competitive bids for the public procurement of construction services for an armed forces base in
Eastern Canada. He also recently acted as mediator with respect to a multi-million dollar dispute between a New York
Hospital and its landlord relating to roof repairs, asbestos removal, maintenance, and other long-term lease obligations.
• JaMeS F. naGle, eSQ. arbitrated a dispute between a regional government authority and an architectural/engi-
neering (A/E) firm arising out of services performed on a particular construction project which was federally funded
and to which portions of the Federal Acquisition Regulation applied. The issue arose out of the government authority’ s
refusal to acknowledge certain salary and bonus payments made by the A/E firm, on the premise that the government
authority was not satisfied that it would in turn receive federal funding by way of reimbursement for those payments.
• In a novel process under an international joint venture among major energy companies, Tho Ma S J. STiPano Wich,
eSQ. served as one of three “Preliminary Arbitrators.” After disputes arose, the panel collaborated to develop a list
of recommended candidates from whom a single Final Arbitrator, with the appropriate skills and strengths, would be
chosen to conduct a hearing and decide disputes. In another dispute, Tom served as chair of an arbitration panel in
a complex, multi-party, multi-million dollar construction case involving a major project at one of the nation’s busier
international airports. The panel addressed numerous claims and counterclaims (delays, differing site conditions,
changes, termination for cause).
BOOkS, ARtICLeS AND SPeAkING eNGAGeMeNtS
• In a video produced by the American Bar Association relating to its February 9-15, 2011 Mid-Year meeting in Atlanta,
John W. h inche Y, eSQ. presented a preview of the meeting session in which he made a presentation dealing with
the College of Commercial Arbitrators’ “Protocols for Expeditious, Cost-Effective Commercial Arbitration.” John also
made a presentation on the Protocols to the Florida Construction Law Institute on March 31, 2011 in Orlando, Florida.
On February 18, 2011, he was a panelist at the Annual Meeting of the American College of Construction Lawyers in
Key Biscayne, Florida, speaking on the topic, “Innovative Methods for Resolving International Construction Disputes”;
and on March 30, 2011, John delivered an Adjunct Lecture to the School of Business Management of Georgia State
University on the topic, “International Commercial Dispute Resolution.”
• Zela “Zee” G. clai Borne , eSQ. co-chaired the Sixth Annual Arbitration Training Institute, sponsored by the
American Bar Association’s Section on Dispute Resolution, which was held in Los Angeles on February 24-26, 2011.
The program also included JAMS GEC neutrals Phil iP l . Bruner, eSQ., John W. h inche Y, eSQ., r ichard
chernic K, eSQ., r . WaYne Thor Pe, eSQ. and h on. cur TiS e. von Kann ( re T.) as faculty members
and presenters.
• Zela “Zee” G. clai Borne , eSQ. and r ichard c hernic K, eSQ. co-authored an article entitled “Reimagining
Arbitration,” which was published in the Litigation Journal, a publication of the American Bar Association’s Litigation JAMS GLOBAL CONStRuCtION SOLut IONS • SPRING 2011 • PAGe 15
Section. Zee and Richard also made a presentation on this topic to the American Bar Association’s Dispute Resolution
Section in Denver in April.
• On May 5, 2011, c rai G Meredi Th, eSQ. addressed the Insurance Practice Section of the Bar Association of San
Francisco on “Insurance Issues in Mediation.”
• On May 12, 2011, h arve Y J. Kir Sh, eSQ. presented his paper on “Key Developments in Arbitration Practice”
at the Joint Spring Symposium of the American College of Trial Lawyers and Canada’s Advocates’ Society in Toronto.
The theme of the Symposium was “Practical Advocacy: Critical Updates, Latest Tools, and Creative Solutions.”
• An article by Tho Ma S J. STiPano Wich, eSQ. titled “Revelation and Reaction: The Struggle to Shape American
Arbitration,” is being published in the Penn State Yearbook on Arbitration and Mediation. Tom also recently spoke at
a national conference titled “The Future of Arbitration” at George Washington University Law School. Additionally,
Tom recently gave the keynote address, dealing with international arbitration, at a conference co-sponsored by the
ABA Section on International Law and the L.A. County Section on International Law.
• June 13-17, 2011 was JaMS naTional ar BiTra Tion Wee K and featured complimentary arbitration CLEs
and events in JAMS Resolution Centers across the country. JAMS GEC neutrals M. WaYne Blair, eSQ., Phili P
l . Bruner, eSQ., richard chernic K, eSQ., Zela “Zee” G. clai Borne , eSQ., h on. cli FFord l .
Meacha M (re T.), JoSePh T. Mclau Ghlin , eSQ., a lexander S. Pol SKY, eSQ., r . WaYne Thor Pe,
eSQ., Michael d. Youn G, eSQ. were among the speakers.
ReCeNt hONORS AND APPOINtMeNtS
• The following JAMS neutrals have been named to the 2011 Southern California Super Lawyer list in the “Alterna-
tive Dispute Resolution” category: Geor Ge d. c al KinS ii, eSQ., r ichard c hernic K, eSQ., Kenne Th c .
GiBBS, eSQ., Joel M. Gro SSMan, eSQ., Gerald Kurland, eSQ., and a lexander S. Pol SKY, eSQ.
Ken Gibbs has also been named in the “Construction” chapter of the 2011 edition of the Chambers USA Directory
for his “truly excellent construction expertise and the ability to skillfully resolve disputes.” r oBer T david Son,
eSQ. has also been recognized in the “International Arbitration” chapter as a leading arbitrator.
• JAMS neutral Geor Ge d. c al KinS ii, eSQ. received the prestigious 2011 West Coast Casualty Jerrold S. Oliver
Award of Excellence. h on. Jona Than h . c annon ( r eT .) was also nominated for this award. Named after the late
Judge Jerrold S. Oliver, a JAMS mediator and arbitrator and a “founding father” in using ADR to resolve construction
claims, this award recognizes an individual who is outstanding or has contributed to the betterment of the construc-
tion community with the same spirit of commitment, loyalty and trust as displayed by Judge Oliver. Previous JAMS
recipients include Bruce a . edWard S, eSQ., r oSS W. FeinBer G, eSQ. and Gerald a . Kurland, eSQ.
• l inda deBene, eSQ. was elected as a member of the Board of Directors and as Membership Chair of the national
Academy of Court Appointed Masters at its recent Annual Meeting in New Orleans.
• John W. h inche Y, eSQ. has been appointed to serve on the Editorial Board of the U.K. Institution of Civil Engi-
neers’ Journal of Management, Procurement and Law.
uPCOMING eVeNtS
• On July 12, 2011, Phil iP l . Bruner, eSQ. will make a presentation on “Construction Disputes” at a seminar
sponsored by the Masters Institute in Construction Contracting at Hilton Head Island, South Carolina. On September
30, 2011, Phil will be addressing the Construction Law section of the Utah Bar Association in Park City on “Trying
the Construction Case in Arbitration and Court”; and on October 7, 2011, he will make a presentation to the Con-
struction Law section of the Montana Bar Association in Bozeman on “Arbitrating the Complex Construction Case.”
• On August 4-9, 2011, Phil iP l . Bruner, eSQ. and h arve Y J. Kir Sh, eSQ. will participate in a Dispute Resolu-
tion Section panel titled “Resolving Construction Disputes in Canada and the U.S - Looking Back, Looking Forward,”
at the American Bar Association’s 2011 Annual Meeting 2011 in Toronto. Other participants on the panel will include
the Honourable Mr. Justice J. Edgar Sexton of Canada’s Federal Court of Appeal, and Duncan W. Glaholt, Esq., of
Glaholt LLP (Toronto), a senior attorney and mediator and arbitrator of construction industry disputes.newsletter Board of editors
Phili P l . Bruner, eSQ.*
Director, JAMS Global Engineering and Construction Group
h arve Y J. Kir Sh, eSQ.*
JAMS Global Engineering and 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
2011 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
Leading ADR Developments from The Resolution Experts
Additional members of the
Ja MS Global engineering
and c onstruction Group
M. Wayne Blair, Esq. • 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.
• Craig S. Meredith, 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.
• 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
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