The Construction Litigation Committee presented a discussion panel at the April 2015 ABA Section of Litigation Annual Conference. The panel comprised committee members Jeanne Barnum, Neal Eiseman, Karen Layng, and Michael Powell. John Bulman served as the moderator/“referee.” Tom Dunn coordinated the program as chair with the assistance of liaison Alex Rothenberg.

Modeled after ESPN’s show Pardon the Interruption, the format was fast-paced, interactive, and provocative as to the pros and cons of 12 topics related to key arbitration pitfalls and ethical issues facing neutrals. In addition to their vast experience, the panel focused on guidance provided by the Code of Ethics for Arbitrators in Commercial Disputes and the American Arbitration Association (AAA) be Construction Industry Arbitration Rules and Mediation Procedures (Including Procedures for Large, Complex Construction Disputes). Highlights from the point/counterpoint format for the topics are summarized below.

Topic 1: Direct Examination by Affidavit

Topic 2: Are Party-Appointed Arbitrators Neutral?

Topic 3: Must Counsel Disclose All Contacts with a Potential Arbitrator?

Topic 4: Do Evidence Rules Hinder the Arbitration Process?

Topic 5: Arbitrator Sanction Power

Topic 6: Should Motions in Limine Be Prohibited?

Topic 7: Is a Mock Arbitration Just as Important as a Mock Jury Trial?

Topic 8: Should a Client Representative Attend and Participate Throughout the Arbitration Process?

Topic 9: Arbitration Is Closed; When Can I Get Hired by the Winning Party?

Topic 10: Are Chess Clocks in Arbitration Fundamentally Unfair?

Topic 11: Should an Arbitrator Allow Depositions at a Party’s Request?

Topic 12: Is Nonbinding Arbitration Effective?

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