Originally from Dispute Resolution Journal

For as long as I can remember, the American Arbitration Association has trumpeted arbitration as a sensible method of resolving construction disputes. The AAA’s Construction Industry Arbitration and Mediation Rules state that “arbitration has proven to be an effective way to resolve disputes privately, promptly and economically.” Those who serve as construction arbitrators on the AAA roster must have extensive experience in construction or construction law, and they are required by the AAA to undertake arbitration training to learn how to manage the process so that it is conducted efficiently and the parties receive a fair hearing. Arbitrators who serve on cases filed with the AAA must faithfully observe the AAA’s Code of Ethics and implement the AAA rules. By any measure, under the AAA’s leadership, construction arbitration has proven to be a highly successful dispute resolution forum.

Nevertheless, I have participated in many arbitrations (as witness, expert, or arbitrator) in which there was a fair resolution but no possibility of saving the parties time and money. The principal reason being that counsel for both sides were unwavering in their effort to employ familiar, time-consuming techniques of litigation—including introducing voluminous exhibits, repeatedly questioning witnesses about the same subject, asking leading questions, and making “for-the-record” objections—techniques which arbitration was designed to avoid.