Originally from Dispute Resolution Journal

Thirty-seven percent of the American Arbitration Association’s construction panel is made up of construction industry arbitrators, meaning architects, engineers, contractors, developers and sureties. The rest are construction lawyers. The intent of this article is to explain how non-attorney construction industry arbitrators think and what they expect from litigants in arbitration. The goal is to help litigants understand how to select the right kind of industry professional for a case and to take advantage of this arbitrator’s expertise by providing the kind of evidence and argument that will be persuasive to him or her. All of the examples used to illustrate points made in this article are taken from my experience.

Standards for Judging the Merits

When there is a single arbitrator, his or her decision resolves the dispute. When three arbitrators are on the panel, it takes only two arbitrators to resolve the dispute under the AAA rules (unless the arbitration agreement requires a unanimous award). Often unanimity is not achieved when there are both attorney and non-attorney industry arbitrators on the panel because the industry arbitrators weigh the proofs by different standards than the attorneys do, based on their different professional training and education and goals.

At a workshop held at a recent AAA Construction Neutral’s Retreat, the following hypothetical was put to the audience.