With the right approach, arbitration can be a highly effective way to resolve construction disputes because of its potential to reduce legal fees, expert fees, arbitration fees and costs. To succeed, the parties and their counsel must cooperate before, during, and after the hearings to implement mutually agreeable measures to promote efficiency. Success requires a thoughtful, strategic approach. Following the techniques outlined below to streamline construction arbitration will ensure not only financial savings but also a more efficient arbitration process. Focusing on careful planning, effective communication and logic dramatically increases the likelihood of success.

Before the first call with opposing counsel, develop a comprehensive plan that outlines all pre-arbitration activities. Present this written plan to opposing counsel and explain the rationale for each step. Take the opportunity to listen to opposing counsel’s ideas and perspectives.

Brainstorming can lead to a mutually agreeable written plan. Taking the opportunity to set the tone for a courteous relationship early on can ensure the arbitration panel’s scheduling order aligns with the agreed-upon plan. A detailed plan demonstrates your preparedness and is more likely to save clients time and money. By doing so from the outset, counsel can establish trust and respect. Then the clients benefit from avoiding petty disputes. Obtaining agreement on a proposed order represents the first crucial step to streamline the arbitration process. The scheduling order should include discrete document requests, timely and comprehensive production, and the exchange of expert reports on liability and damages. By presenting a well-structured plan to opposing counsel and the arbitration panel, you significantly improve your chances of advocating effectively for your client.

Document Production

Counsel should focus on discrete document requests, not wide-ranging and burdensome tactics. Start by identifying and requesting only the documents directly relevant to the claims and damages. These requests should only include essential documents that the client does not have but needs. Then counsel can demonstrate to the client and the panel a thoughtful, cost-effective approach. Make sure to communicate to opposing counsel that objections or even basic questions should be discussed in a virtual call within a short time of the issuance of each request. Do not hold objections to the time at which you are required to produce documents.

Keep the lines of communication open. Then counsel can avoid lengthy delays and disputes that can delay the entire process. Such disputes frequently end up before the panel in the form of letters or conferences. That can be costly, time consuming and irritating to the panel. Timely, comprehensive production is a best practice. Avoid waiting to send responsive documents until the deadline for production. Set a written protocol and follow it. Avoid piecemeal production. If multiple steps to production are necessary, start production early and proactively explain to opposing counsel the reasons for the method of production. Then counsel can avoid disputes about the adequacy and responsiveness of the production, preventing them from again ending up in front of the panel and avoiding the appearance of gamesmanship.

Experts and Depositions

Exchange of expert reports on liability and damages must adhere to the scheduling order. Counsel should agree to a timeline for exchanging expert reports on both liability and damages. Counsel should confer about the material issues and decide upon and implement a plan to narrow the range of issues. Simply having experts meet to determine areas of agreement and disagreement alone can save legal fees, expert fees, cost, and time. Then the reports and time dedicated to their creation will be reduced, resulting in cost savings. Exchange expert reports well in advance of the hearings to allow a thorough review. Then counsel can decide the need for preparation of rebuttal reports. Ideally, no expert should need to prepare a rebuttal report, as their expert report should suffice to respond to any allegation. If needed, use rebuttal reports sparingly and only to counter specific points raised by the opposing party’s experts. After counsel have exchanged reports, consider the possibility of a “hot tub” for the experts before the hearings or at the hearings. Hot tubbing involves having each expert witness address relevant elements of the report to explain their positions, answer questions from the panel and direct questions to each other. Obviously, such a method will require timely communication with the panel.

The deposition process can provide another opportunity to realize savings in terms of fees and costs. Limiting the number and duration of depositions can prevent unnecessary expenses. Clearly define the scope of each deposition, pre-mark exhibits, and know precisely what information you need from each deponent. Focus the depositions on obtaining crucial information efficiently and the results will be effective for clients.

Strategies to Promote Efficiency

Counsel play a significant role in ensuring efficient hearings that lead to effective arbitration. For starters, it’s important to limit or avoid unnecessary motions. Serving motions such as motions in limine or motions for summary judgment can undermine the opportunity to have a full-fledged set of hearings and may create an appealable issue. Filing motions and responding to motions can waste clients’ time and money and may lead to delays. Limit them and the panel can focus on hearing testimony, reading documents and asking questions. An organized, efficient presentation of testimony and documents will also ensure a more streamlined and cost-effective process. Before the hearings, go over the order of witnesses and introduction of documents. If possible, discuss and resolve objections before the hearings. Do not use hearing time for matters counsel can address and resolve in advance. All exhibits should be pre-marked and exchanged well in advance of the arbitration to avoid unnecessary delays. Following these effective steps will allow the arbitrators to understand the issues and each side’s case.

Additionally, both parties should agree in advance to the total number of hours each side will have to present their case. Time limits encourage concise and focused presentations, ensuring that only the most pertinent information is presented. Hearings should focus on the efficient presentation of information, not drawn-out presentations. Use witness statements for direct examination to allow the hearing to focus on cross-examination and live testimony from key witnesses. Prepare each witness to keep their testimony concise and focused. Leverage technology in each witness presentation to effectively and efficiently present evidence. Allow third-party testimony remotely when necessary. Being flexible reduces costs associated with travel and accommodation while still ensuring the testimony is heard. Following these basic steps will streamline the arbitration process and ensure that the arbitrators hear directly from the most critical witnesses.

Post-Hearing Briefs

• To enhance the process and improve the potential for a successful result, include the opportunity for post-hearing briefs based on hearing transcripts. Transcripts avoid the possibility of failed recollection of testimony by either party or any panel member. Consider post-hearing submissions and oral argument of discrete issues to allow for a dynamic exchange. Be prepared to answer questions from the arbitration panel after closings and utilize the oral argument with the arbitration panel to address any remaining questions or clarifications directly. An interactive approach enhances the arbitrators’ understanding of the case and supports a well-reasoned decision. Consider whether reply briefs are needed at all. Briefs should concisely set forth all the critical elements of the case, providing the reasons for the relief sought. Agree upon the need for a reasoned decision so that counsel and the parties can read the basis of the panel’s decision. This requirement should appear in the scheduling order.

• Using the strategies described above, counsel and the parties can promote cost-effective arbitration that avoids unnecessary fees and costs and demonstrates a thoughtful, businesslike approach and effective advocacy in the representation. Whatever the panel decides, counsel and the parties can be confident that counsel implemented best practices and conducted themselves in a professionally courteous manner. This streamlined approach lessens fees, expenses and costs using proactive steps to make the difference. By adopting these techniques, legal professionals can significantly reduce costs and improve the efficiency of arbitrations. Effective communication and preparation are key to achieving successful outcomes in construction arbitration, ensuring that the process remains a viable and cost-effective alternative to traditional litigation.

Reprinted with permission from the August 13, 2024, issue of The Legal Intelligencer© 2024 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.