Maybe you have negotiated with your counterpart to include an arbitration provision in your construction contract or picked up a form contract that selects arbitration as the method of dispute resolution. Regardless of the circumstances, when the time and need for arbitration comes, the big question remains, who will be the arbitrator(s) tasked with the fate of my case, my client, my company or my project?
When it comes down to it, there is a human component to consider. All potential arbitrators come with their own experiences, views, and perhaps unconscious biases. With that in mind, let’s consider some of the strengths and weaknesses of common types of arbitrators.
The Former Judge
The former or retired judge is perhaps the most obvious choice. Who better to handle your dispute than someone who has decided hundreds of disputes and cases prior to your own? But with every former judge, there are factors worth considering.
First, does the judge have construction law experience? There is something different about the issues here, the knowledge we are required to possess as a baseline, and an appreciation of the various players and technologies involved. Is a judge without construction law experience really going to be the best option? Also, does the judge’s approach to case presentation suggest you might find yourself in a more formal and rigid setting? Does that suit you, your case, your evidence and your strategy?
If you do not have answers to these questions, one advantage of the former judge is that there may be published decisions out there that provide insight into his or her experience and viewpoints.
Another common choice is selecting a lawyer as your arbitrator. Like the former judge, this decision requires a good deal of forethought.
- What is the lawyer’s background?
- Do they have a construction, design or engineering background in addition to their time as a lawyer?
- Are they an in-house lawyer, which brings with that experience another layer of business strategist perspective?
- Are they a litigator or a contract lawyer?
- Have they typically represented owners, contractors, subcontractors or design professionals?
- Will that produce a subconscious bias in favor of you or your opponent?
Here again, check to see if there reported cases available showcasing their arguments or indicating if they have taken positions directly in line with the theme you are planning for your own case.
The Industry Professional
Having someone familiar with the highly specific details of your case might be an advantage, right? Then again, maybe not. In light of your position and preferred outcome, will they benefit from review by someone with particular technical expertise? Do you need an arbitrator or an expert?
Most, if not all, professional arbitrators have some requisite training before they sit as an arbitrator, and the industry professional may offer you an arbitration process that the formality that can come with a former judge or lawyer.
There are strengths and weaknesses to each type of arbitrator you choose to handle your dispute. In this internet age, the most important method of selection is to fully research and vet potential arbitrators. Then, with the information at your disposal, you will be in a much better position to select the arbitrator that best suits you, your client, and your case.
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