Innovations in Arbitration: Improving the Presentation of Evidence in Construction Arbitration - Chapter 28 - AAA Handbook on Construction Arbitration and ADR - Third Edition
Robert J. MacPherson
Richard F. Smith
Roy S. Mitchell
Mr. MacPherson practices construction law at Gibbons PC in Newark. He is a Fellow of the American College of Construction Lawyers and former Chair of the ABA’s Forum on Construction Law. He is a court-appointed mediator and serves on the American Arbitration Association’s national roster of construction mediators and arbitrators.. He teaches Construction Law at Rutgers Law School, Newark, New Jersey. Richard F. Smith is Senior Counsel to Smith Pachter McWhorter P.L.C. of Vienna, Virginia, specializing in the resolution of construction and government contract disputes. He is on the American Arbitration Association Panels of Arbitrators and Mediators. He is also a Fellow of the American College of Construction Lawyers and a Fellow in the College of Commercial Arbitrators. Mr. Smith is active in the American Bar Association Forum on the Construction Industry, and the Virginia Bar Association and Virginia State Bar Sections of Construction Law and Public Contracts. Roy S. Mitchell is a full time mediator and arbitrator. He is a Fellow of the American College of Construction Lawyers, a Fellow and former National Chairman of the Public Contract Law Section of the American Bar Association and has served as a faculty member for the Construction Executive Programs at Stanford and Texas A&M Universities.
Construction arbitration promises an expeditious and efficient method of dispute resolution. But arbitration conducted like a traditional trial does not deliver on that promise. The question is, from the parties’ point of view, how do you balance the goal of efficiency against the right of the parties to fully present their case?
The American Arbitration Association rules require arbitrators to strike this balance. However, better tools are need both to keep arbitration a distinct and more streamlined process from litigation and to provide ways for the parties’ due process rights to be satisfied. This chapter discusses two procedures we have used that facilitate the presentation of evidence and expedite the process. The first is for the attorneys to prepare summaries of the evidence (rather than witness statements), which can be supplemented by “witness panels,” if needed. The second is to have a joint examination of opposing experts.