Innovations in arbitration: Improving the presentation of evidence in construction arbitration

Hard as it may be for lawyers to accept, unless the testimony or evidence objected to is totally irrelevant, patently unreliable or grossly prejudicial, most arbitrators consider "objections" a waste of time.

When using these procedures, the arbitrators must create an atmosphere in which counsel and the parties feel they are being given a full and fair opportunity to present their case. When and in what order these procedures are used is dependent on any number of factors. For example, all the necessary witnesses must be available at the same time for a witness panel to be effective. One would not want to have an expert "confrontation" unless the experts are confident enough to engage in a serious discussion without degenerating into an argument. Arbitrators can encourage the parties to consider using these procedures, listen to the attorneys concerns and then fashion the procedures to address them. We do not advocate imposing them on counsel without their consent.

Mr. MacPherson is a partner in Postner & Rubin of New York City and Holmdel, N.J. His law practice is limited to construction matters. he is a court-appointed mediator for state and federal trial courts in New Jersey and New York. he serves on the American Arbitration Association's national roster of construction arbitrators. he is active in the American Bar Association Forum, on the Construction Industry and the New Jersey Bar Association's Dispute Resolution section, which in 2001 named him, James B. Boskey ADR Practitioner of the Year. Mr. Smith is senior counsel to Smith, Pachter, McWhorter & Allen, P.L.C. of Vienna, Va. He specializes in the resolution of construction and government contract disputes. he is an arbitrator and mediator and has seized on a disputes review board. he is a Fellow of the American College of Construction Lawyers. he is also active in the American Bar Association Forum on the Construction Industry, the ABA section on Public Contracts, and the Virginia Ear section on Construction law. Mr. Mitchell is president of the Construction Contracts and Claims Group of Hill International, Inc., a worldwide construction consulting firm. he is a Fellow of the American College of Construction Lawyers, and former national chairman of the Public Contract Law section of the ABA. Among other things, he has served as a faculty member for the Construction Executive Programs at Stanford and Texas A&M Universities.

Copyright American Arbitration Association Aug-Oct 2003
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