Successful Construction Arbitration: Forum Selection, Forensic Experts, Damages and Attorney's Fees

Description

The construction industry uses several standard contracts and provisions--most predominantly the AIA. However, even in standard agreements, counsel can structure arbitration provisions to provide the stakeholders with assurance that their future claims will be handled properly.

Selecting an appropriate forum is central to drafting an arbitration provision in the event of a dispute and determining the rules for arbitration and the number and qualification of arbitrators. Sometimes circumstances change and an agreed-upon arbitration forum becomes unavailable. The courts disagree on how to proceed in this situation. Indeed, federal circuit decisions split over whether a court should appoint substitute arbitrators and enforce arbitration or excuse parties from their obligations to arbitrate when an agreed-upon arbitration forum is no longer available.

The parties can agree upon efficient arbitration procedures, or the arbitrator can determine them with the parties, often at the first case management meeting. It is more challenging to decide the appropriate level of process and resources to match the case's value and complexity, such as qualification and use of experts. A thoughtful arbitration process will integrate local rules and court intervention, including potential appeals.

Counsel needs to consider steps to take to ensure each arbitration's cost-effectiveness in structuring terms, avoiding bifurcation, adopting specific procedures, limiting written submissions, and reducing document production.

Listen as our authoritative panel provides practical guidance to construction counsel on achieving results in arbitration in a cost- and time-efficient manner. The panel will discuss the critical steps in construction arbitration and the factors that impact the cost and length of proceedings and share practical tips to assist in navigating the world of construction arbitration.