By Steve Rizer
When it comes to commercial arbitration within the construction industry, it is possible to achieve a result that is fair and equitable -- as well as expeditious -- but certain requirements need to be met. This is one of the key points that The Holt Group LLC’s managing principal emphasized in summing up for ConstructionPro Week a presentation he delivered, entitled “The Advanced Ideal: Best Practices for Promoting Efficiency and Economy in Arbitration,” Jan. 30 at the American Bar Association’s Forum on the Construction Industry Midwinter Meeting in Paradise Island, the Bahamas.
Accomplishing such a goal “requires that there be a certain amount of good planning, starting with the development of an appropriate arbitration clause to go into the agreement to begin with,” said L. Tyrone Holt, who also serves as the College of Commercial Arbitrators’ president. After this step, there needs to be “the selection of counsel that have familiarity with arbitration in the construction industry and who are themselves committed to achieving a fair, expeditious, and cost-effective result.” He also stressed that it is important for the arbitrator, counsel, and parties to “cooperate throughout the process to achieve that result.”
During the presentation, Holt and fellow presenter James Schenck of Conner Gwyn Schenck PLLC discussed techniques that can be implemented during the drafting, initiating, pre-hearing, hearing, and post-hearing stages of arbitration. Among the suggestions offered were to address jurisdiction and arbitrability early on in the initiating-arbitration stage, impose reasonable limits on motion practice during the pre-hearing stage, use expert-witness examination techniques such as “conferencing” or “hot-tubbing” during the hearing stage, and, in the post-hearing stage, avoid the natural tendency to re-litigate, seeking vacatur only when a strong basis exists.
“I believe, based on my experience both as an arbitrator and as a construction trial practitioner, that if you take the approach that we’ve suggested -- and we gave a number of tips about how to implement that in terms of techniques -- that you can get a better result from arbitration in the construction setting in most circumstances than if you go to court,” Holt said.
The ConstructionPro Network member version of this article includes coverage of meeting sessions on recovery schedules and the effect of building information modeling on practitioner liability.
