Originally from Dispute Resolution Journal

Construction arbitration is in trouble… again. I say “again” because 12 years ago arbitration faced a similar crisis of confidence in the construction industry. Then, the main criticism was that arbitrators were not exercising sufficient control over the process but rather acted like referees granting postponements, refusing to hear dispositive motions, and issuing awards with no explanation. There was little discovery and parties were often taken by surprise. As a result, lawyers felt compelled to conduct lengthy cross-examinations and request hearing postponements so they could prepare their defenses. Paid by the day, some arbitrators were only too happy to oblige. To address these concerns, an American Arbitration Association (AAA) task force, made up of construction industry representatives, design professionals and construction attorneys, produced a new set of arbitration rules for the construction industry; it provides for a three-track system (fast track, standard, and complex); a continuum of increased levels of discovery (depending upon the track); and an expansion of the arbitrator’s powers to grant dispositive motions, streamline the presentation of proof, and eliminate cumulative evidence. The new rules also require that awards be supported by brief written explanations or numerical breakdowns.