Practice Areas
Alternative Dispute Resolution
The courtroom can be an awkward, unpredictable and expensive place to resolve construction disputes. Consequently, the construction industry has experimented with and embraced a number of alternatives to traditional litigation. For over a century, the standard contract forms of the American Institute of Architects have contained binding arbitration clauses. Many courts have referred litigants to private arbitration, special masters and referees. Over the last fifteen years, a growing number of courts have required litigants to attend mediated settlement conferences prior to trial, and many contracts now require mediation as a condition of filing a civil action. The industry has also embraced partnering, dispute review boards, project counsel arrangements, neutral fact finding, and other private, consensual methods of resolving disputes.
Like the industry we serve, our firm and its members have always experimented with and embraced alternative dispute resolution, or ADR. Whether our clients are asserting or defending a claim, our objective is to improve our clients’ position. If this means litigation, so be it. But in the construction industry few clients are truly better off after protracted litigation, even if they “win.“ In many cases, a better strategy includes negotiation and some form of ADR. Recognizing the limitations of litigation in our industry, and the actual harm litigation can do to relationships, reputations and bank accounts, we have endeavored to master the alternatives to litigation. Our lawyers have tried hundreds of cases, large and small, to arbitration panels, and we have represented clients in hundreds of mediated settlement conferences. But we do not stop with advocacy. Some of our attorneys are trained and experienced in service as project neutrals. The following is a description of some of the services we provide as neutrals in the ADR setting. More details can be found under individual attorney profiles.
Arbitration
Three of our attorneys, Richard Conner, Holt Gwyn, and Jim Schenck, are members of the American Arbitration Association Panel of Construction Arbitrators. They have also served as arbitrators by special appointment of the courts in North Carolina. From the inception of Conner Gwyn Schenck PLLC, we have been appointed to serve as arbitrators in approximately 120 cases, over half of which have gone to hearing. Hearings in these cases have ranged from one day to several months, and have involved relatively small amounts in controversy to multi-million dollar disputes.
Mediation
Four of our attorneys, Richard Conner, Holt Gwyn, Jim Schenck, and Jay Wilkerson, are certified by the North Carolina Dispute Resolution Commission to serve as mediators in North Carolina Superior Court cases. Conner, Gwyn, and Schenck are also members of the American Arbitration Association Panel of Construction Mediators. We have mediated hundreds of construction industry cases, large and small (as well as hundreds of other cases not specifically related to the construction industry). More information about our mediation experience can be found on the website of the North Carolina Academy of Superior Court Mediators, accessible from our individual attorney profiles.
Court Appointments
From time to time, our members have been appointed by the courts to serve as special master (in Federal Court) or referee (in State Court) to hear cases and give advisory opinions to the court. Normally the parties and the courts accept these opinions, resolving their dispute.
Neutral Fact Finding
We are frequently asked to look at claims for one or both parties, usually public owners, and give a neutral opinion on the merits of a claim or related group of claims. In our opinion, this process is not used enough in the industry, even though some state rules, including the court rules in North Carolina, recognize and sanction the process, and even though many lawyers and ADR experts have touted the procedure for years. The cost of a neutral fact finder usually is greater than the cost of a mediator, but it can be money well spent in a complex case, and can be coupled with mediation in some cases.
Dispute Review Boards
Although not commonly used in North Carolina, we have some experience serving on dispute review boards in other states. Richard Conner served on three Dispute Resolution Boards for the $1B+ toll roads being constructed in the San Joaquin Hills Transportation Corridor, Orange County, California for several years. Holt Gwyn is currently serving on a Dispute Resolution Board for a multi-year mixed use project in North Carolina.
Development of ADR Programs
We have developed ADR rules and procedures for numerous projects over the years, including a high-rise resort on the South Carolina coast, a corporate headquarters in North Carolina, a Superfund site in Michigan, and several public buildings in our home state. Although it is usually best to decide on ADR procedures at the beginning of a project, we are often called on to fashion a dispute resolution procedure after disputes have arisen. Negotiating an ADR process to resolve a pending dispute can be a challenge, but it is a challenge we embrace, because it is often best for the parties and the project. We have negotiated such agreements in dozens of cases. In one case, we were able to negotiate an agreement to retain a neutral fact finder to resolve dozens of disputed change orders and backcharges on a prominent public arena project, with the result that litigation was avoided altogether.
Project Counsel
Sometimes our role extends beyond the creation of a project ADR process. We are prepared to step in as counsel to the “project.“ In that role, we will review contracts for clarity, balance and fairness, review insurance and risk management programs, review the project information program, administer the ADR program and even serve as neutral fact finder. We expect the need for these services to grow if the industry embraces enterprise and consensus type contract documents and delivery systems.