The rapid growth of construction arbitration over the last 20 years is a testament to its advantages over traditional litigation: speed, cost and flexibility. But as parties submit larger and more sophisticated disputes, they are looking for ways to ensure the process can still provide those advantages. The good news is that arbitrators and counsel can agree on procedures to structure the presentation of evidence that both suit complex construction cases and enhance efficiency. At a recent roundtable discussion, JAMS neutrals and construction heavyweights discussed using the following techniques to reduce the time and cost to resolve construction disputes:
Written Witness Statements
Submitting direct testimony through written witness statements—a practice common in international arbitration—can dramatically reduce both the time and cost of construction arbitration. It eliminates the need for depositions, since the parties know what testimony the other parties will introduce, and allows them to prepare better, targeted cross-examination. It also significantly cuts down the length of the hearing, as time is only spent on cross-examination and re-direct. Arbitrators also welcome it because it provides the opportunity for a better understanding and appreciation of the parties’ positions in advance of the hearing.
Submitting expert reports to the arbitrators in advance as their direct testimony, and then allowing them to then make a short (30-to-90 minute) visual presentation (PowerPoint or other format) at the hearing can improve the efficiency and efficacy of expert testimony.
Joint Expert Meeting Without Lawyers
At the request of a party, or on their own initiative, the arbitrator can order the parties’ respective experts to meet outside the presence of lawyers to explore where they agree and disagree, and then produce a report listing the agreed-upon and disputed issues. This allows the parties and the arbitrators to understand what area(s) and points of disagreement between the experts exist and to limit the examination to those points, significantly cutting down preparation and hearing time.
“Hot Tubbing” of Experts
Either as an alternative to the experts meeting outside the presence of counsel and issuing a joint report, or in addition to them, the parties can agree, or the arbitrator(s) can order, that the parties’ respective experts on any given topic appear together for questioning by the tribunal. This technique, which is also more common in international arbitration (and often referred to as “hot tubbing”) can uncover why the experts disagree, thus helping the arbitrator focus his or her questioning and reducing hearing time. This process can be particularly helpful for technical issues.
Arbitration of construction disputes must continue to meet the parties’ needs. If counsel and arbitrators continue to ensure that the process is fast, cost-effective and flexible, it will.