Last week, John Bulman and I attended the National Construction Dispute Resolution Committee’s (NCDRC) Annual Meeting in Washington, DC. The NCDRC is an advisory committee formed by the American Arbitration Association (AAA) to engage in discussion with a wide variety of construction industry associations about the AAA Rules and dispute resolution processes generally. The American Institute of Architects (AIA) graciously hosted the meeting at its offices.
Representatives from the following organizations were present:
- American Institute of Architects (AIA)
- National Society of Professional Engineers (NSPE)
- ABA Forum on Construction Law
- ABA Construction Litigation Committee
- Associated General Contractors of America (AGC)
- ABA Section of Public Contract Law
- American College of Construction Lawyers (ACCL)
- Construction Management Association of America (CMAA)
- Women Construction Owners & Executives USA (WCOE)
Coming away from this discussion, here are the primary takeaways that I think would be of interest to Solid Foundation’s readers.
I. ADR Education and Outreach.
Most (perhaps all) of the attendees were experienced AAA arbitrators. While there is substantial ADR buy-in from NCDRC member representatives, we discussed how continued misconceptions regarding arbitration exist in the legal community and throughout certain areas of the construction community. We discussed the importance of ramping up efforts to explain the benefits of arbitration and/or engage in meaningful debates with those who have differing viewpoints. The AAA representatives emphasized that while they can “push” information out to the industry, one of the prime functions of the NCDRC can be to “pull” feedback from the member organizations regarding the AAA dispute resolution rules and procedures. I particularly found one aspect of the “outreach” discussion promising — finding ways to actively engage the end-users of the arbitration process (our clients) into the arbitration process and decision-making. The more that the end-users of arbitration services are be educated and actively engage, whether at the contract drafting or dispute stages, the greater the likelihood that those end-users will achieve the arbitration goals of a speedy, less expensive arbitration process. In my practice, I seek to actively engage my clients in the arbitration process. If you are on the client side, assist your attorney in selecting arbitrators, crafting a discovery plan, and attending conferences with the arbitrator. The protocols established by the College of Commercial Arbitrators (CCA) repeatedly emphasize direct user/party engagement. After all, the parties are the ones that know their case and are best positioned to assist with the tailoring of an efficient arbitration process.
II. Discovery in Arbitration
The AAA Rules provide guidance regarding information exchange (discovery) in arbitration. The level of exchange varies whether the arbitration is a fast-track, regular track, or large/complex matter. In general, the variation is:
- Fast Track = No Discovery
- Regular Track = Document Exchange
- Large and Complex = Limited additional discovery at the discretion of the arbitrator.
Of course, parties are free to agree to more expansive or limited discovery in their arbitration agreements. But, where the arbitration agreement is silent on discovery and refers only to the AAA Rules, what are the best practices concerning the scope of information exchange in arbitration? At the NCDRC meeting, we broke into small groups to outline such best practices and pose questions for various focus groups to discuss discovery in arbitration throughout the country. Be on the lookout for a focus group or more discussion about this topic in the coming months in your area.
III. AAA Arbitration Cases Are Increasing
The AAA reported that cases increased 9% in the past year. Not only did the number of cases increase, but the dollar value of the asserted claims adjudicated rose substantially as well. The general makeup of the AAA Panel has remained consistent with attorney and industry professional representatives. The diversity of the AAA Panel Members continues to increase as well.
This was my first NCDRC meeting. I was impressed and encouraged by the engaging discussion amongst the attendees. Kudos to the AAA and the NCDRC member associations for putting together a valuable committee to improve the dispute resolution methods of the construction industry!
While I flew in and out of DC on Thursday, I couldn’t help but take a few photos during the meeting and my Lyft ride — I love DC!