Innovations in Arbitration: Improving the Presentation of Evidence in Construction Arbitration - Dispute Resolution Journal - Vol. 58, No. 3
Mr. MacPherson is a partner in Postner & Rubin of New York City and Holmdel, N.J. His law practice is limited to construction matters. He is a court-appointed mediator for state and federal trial courts in New Jersey and New York. He serves on the American Arbitration Association’s national roster of construction arbitrators. He is active in the American Bar Association Forum on the Construction Industry and the New Jersey Bar Association’s Dispute Resolution Section, which in 2001 named him James B. Boskey ADR Practitioner of the Year.
Mr. Smith is senior counsel to Smith, Pachter, McWhorter & Allen, P.L.C. of Vienna, Va. He specializes in the resolution of construction and government contract disputes. He is an arbitrator and mediator and has served on a disputes review board. He is a Fellow of the American College of Construction Lawyers. He is also active in the American Bar Association Forum on the Construction Industry, the ABA Section on Public Contracts, and the Virginia Bar Section on Construction law.
Mr. Mitchell is president of the Construction Contracts and Claims Group of Hill International, Inc., a world-wide construction consulting firm. He is a Fellow of the American College of Construction Lawyers, and former national chairman of the Public Contract Law Section of the ABA. Among other things, he has served as a faculty member for the Construction Executive Programs at Stanford and Texas A&M Universities.
Originally from Dispute Resolution Journal
In this article a panel of construction arbitrators discuss some simple yet effective procedures designed to promote expeditious and efficient arbitration hearings while still providing the parties with a full and fair opportunity to present their case.
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 article 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.
In international commercial and construction arbitration, it is common practice for the parties to introduce direct testimony by using written witness statements, instead of examining the witnesses at the hearing. Those who advocate this procedure believe that it reduces the length of the hearings and thus lowers the overall cost of the arbitration. Those who prefer live testimony suggest that any savings are lost due to the cost of preparing the witness statements.
Agreeing in principle that live testimony can prolong the proceedings, we have had excellent results experimenting with a slightly different approach to the presentation of a party’s direct case.