International Construction Law Review
ARBITRATOR-DIRECTED ARBITRATION: A DIFFERENT APPROACH TO ADR
MARK C FRIEDLANDER*
Schiff Hardin LLP
I. INTRODUCTION
The genesis of this article is my own experiences as an arbitrator and advocate in construction arbitrations, combined with the increasingly negative feedback that I have received from my clients and their insurance companies regarding binding arbitration as an alternative dispute resolution method. Although I have always been a strong proponent of arbitration rather than court litigation, at least for resolving disputes in the construction industry (which is where I concentrate my practice), my clients and other contacts in the construction and insurance industries have increasingly complained that arbitration does not result in the savings in cost and time that they expected. From my perspective as an arbitrator and advocate in arbitrations, I understand and sympathise with their point of view.
As an arbitrator, I have presided over arbitrations that have taken many more days than necessary because counsel for the parties were extremely inefficient in presenting their cases. I observed that they often:
- spent exorbitant time on relatively minor issues;
- failed to perceive what the truly important issues were;
- did not properly understand the legal bases of their claims and defences;
- wasted time on unnecessary foundation and other evidentiary issues;
- elicited far more cumulative and explanatory information and detail than I needed; and
- played what I refer to as “jury games”, such as attacking a witness’s credibility on collateral issues and trying to embarrass witnesses with unimportant contradictions.
* Mark C Friedlander is the Chair of the Construction Law Group of the law firm of Schiff Hardin LLP. He obtained his BA from the University of Michigan in 1978 and his JD from Harvard Law School in 1981. Since 1985 he has been an adjunct professor at the University of Illinois at Chicago School of Architecture and since 1995 a lecturer at Northwestern University’s Engineering School. Mr Friedlander is a member of the Design Build Institute of America and the former Chairman of its Professional Practices and Contracts Committee. He is on the Board of Governors of the American College of Construction Lawyers and is currently President of the Society of Illinois Construction Attorneys. The views expressed in this article are Mr Friedlander’s own opinions and do not necessarily reflect the views of the organisations with which he is associated. He can be reached at (312) 258–5546 or mfriedlander@schiffhardin.com
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