Be sure to get enough rest to sustain your energy level through a multi-day hearing. You need to be mentally agile and able to deal with any curve balls thrown at you.
Be humble in victory and accepting in defeat. You can consider the grounds for appeal later but be mindful that they are extremely limited. Finally, recognize that these tips are just a starting point. I hope they are "constructive."
Guidance for construction professionals and counsel in structuring contracts and handling disputes to reduce aggravation and achieve better results. Tips range from the tried and true to the bold and daring.
Do you really want the best arbitrator for the job? The answer could be "no."
Scrutinize the schedules and specifications (including the standard "spec" list) for inconsistencies, for it's often in the ancillary documents where conflicts reside.
Don't risk a poor cross of an expert because it just provides an opportunity for the expert to reinforce the adversary's position.
1 True this is not a construction rhyme. There are a number of theories about the origins of the rhyme. One is that Humpty Dumpty was a cannon used during the English Civil War (1642-49) between the Royalists (supporters of Charles I) and the Parliamentarians (called Roundheads). The cannon, which was supposedly placed on top of a church wall in Colchester) fell to the ground when the church tower was hit in an attack by the Parliamentarians. Royalist soldiers were supposedly the "king's men" referred to in the rhyme. See www.famousquotes.me.uk/nursery _rhymes/humpty_dumpty.htm and www.zelo.com/family/nursery/humpty. asp.
2 The parties can also determine the issues to be decided, the scope of relief and the framework for resolution. They can agree to administered arbitration or ad hoc arbitration. Only the former uses a professional independent arbitration organization, such as the American Arbitration Association, to administer the dispute. The administrator acts as an intermediary between the arbitrators and the parties.
3 Often a state trial court hears the first level of appeal of an arbitration award.
4 The details have been changed to protect the privacy of the parties.
5 The term "schedule" in construction agreements can refer to a timetable of tasks, as in the case of a CPM. But the term schedule may also reference an addenda, rider or attachment dealing with a multitude of issues including detailed requirements that need to be fulfilled prior to any payments being made. Often a timetable of payments is drafted in such a manner that the work precedent to a progress or other payment is described in detail. So what originates as a timing mechanism entails a description of work that is often described slightly differently elsewhere in the contract. This leads exactly to the problems this author is urging the reader to avoid.
6 One expert used the term "dancing" to describe looking at a series of walls of various angles and different heights and widths.
7 For this article I'm omitting discussion of the all-digital arbitration where there are no papers in the room, just people and laptops. However, it's worth noting the increasing popularity of electronic arbitration. My view is that this is the wave of the future.
Joel Levine is a full time ADR practitioner based in Florida. He serves on the American Arbitration Association roster of neutrals for construction and commercial cases. He is also a Certified Florida Circuit Court mediator and a Certified International Mediation Institute (IMI) mediator. As a former practicing real estate lawyer in New York and Florida, Mr. Levine negotiated and drafted a multitude of acquisition, development and construction agreements. He has served as a neutral on more than 1,000 matters, many of them construction disputes. He is familiar with a wide range of construction problems that can arise from the planning stage through completion of a project. A graduate of Harvard Law School, Mr. Levine obtained his first taste of construction by working on a renovation construction crew in Manhattan during the summer of his first year. After graduating, Mr. Levine served in the Peace Corps-Venezuela. Later in his career, he was a principal in a real estate company, which he took public. Mr. Levine can be reached by e-mail at email@example.com or by telephone at (305) 571-1164.