Arbitrating Construction Disputes

Albert Bates, Jr. and R. Zachary Torres-Fowler | Reuters

An explanation of the steps and considerations involved in arbitrating a construction dispute in the US, including the issues that parties should consider before arbitrating a dispute, the steps parties should take to prepare for the arbitration, and the process for presenting claims and defenses during the arbitration hearing.

Construction disputes present unique challenges because they typically arise in the midst of a construction project and can lead to significant project delays and expenses if not quickly resolved. To mitigate these risks and avoid court litigation, the construction industry uses several forms of alternative dispute resolution, including:

• Mediation.
• Dispute boards.
• Arbitration.

Although construction arbitration has some attributes of commercial arbitration, it is a distinct practice that requires participants to understand its unique features. With careful planning and thought, parties and arbitrators can readily mitigate the more cumbersome features of construction arbitrations to resolve disputes in an effective and efficient manner.

This article explains the factors that parties must consider when preparing for and conducting a construction arbitration. It outlines steps for parties to take when deciding to arbitrate and the process for presenting claims and defenses in a construction arbitration hearing.

(For more on construction arbitrations generally, see Construction Arbitration in the May 2023 issue of Practical Law The Journal; for more on international construction arbitrations, see International Arbitration and Construction Disputes on Practical Law.)

Pre-Arbitration Considerations

Before beginning an arbitration, a party in a construction dispute should consider several issues, including:

• Whether the parties executed an agreement to arbitrate the dispute.
• Whether there are any conditions precedent or prerequisites to arbitration.
• The rules governing the arbitration.
• The background and expertise the party wants the arbitrators to have.
• The types of expert witnesses the party may require.

Arbitration Agreement

Before a party begins an arbitration, it must confirm that there is an agreement between the parties to arbitrate the dispute. A party’s failure to do so may delay resolution of the dispute and increase costs as the parties resort to local courts to litigate threshold issues over the arbitration agreement’s existence and scope. Parties must set out their agreement to arbitrate disputes arising under a construction contract in either:

• A provision of the construction contract.
• A separate arbitration agreement.

(For guidance on drafting an arbitration clause in a construction contract, see Arbitration Clauses in Construction Contracts in the US: Drafting Strategies on Practical Law.)

Dispute Resolution Requirements

A party considering arbitrating a construction dispute should review the construction contract to determine whether there are any conditions precedent or prerequisites to arbitration. While parties often have good reason to incorporate these conditions precedent or prerequisites to arbitration in their arbitration agreements, dispute resolution prerequisites may require the parties to incur significant time and expense before they begin an arbitration. This is particularly true if the parties fail to carefully satisfy these prerequisites before initiating arbitration.

The dispute resolution clauses in construction agreements sometimes contain escalation or step clauses that impose pre-conditions on a party’s ability to start an arbitration, such as mediation or direct meetings between the principals’ executives (for more information, see Hybrid, Multi-Tiered and Carve-out Dispute Resolution Clauses on Practical Law). Many of these contractual pre-conditions are similar to the arbitration prerequisites in other commercial agreements.

Additionally, the construction industry uses a unique contractual prerequisite known as a dispute board. There are various types of dispute boards within the industry that are used in varying degrees inside and outside the US, including:

• Dispute resolution boards (also called dispute review boards).
• Dispute adjudication boards, dispute avoidance and adjudication boards, and combined dispute boards.

A dispute board is a panel of one or three independent construction experts the parties have selected to resolve project disputes before they escalate into claims involving formal arbitration or court litigation. Dispute board proceedings are less formal and time-consuming than an arbitration and can be a useful means of resolving construction disputes. However, if the dispute remains unresolved, using a dispute board can delay the start of an arbitration.

(For guidance on using dispute boards to resolve construction disputes in the US, see Using a Dispute Resolution Board for Construction Disputes and Dispute Resolution Mechanisms in Construction Contracts in the US on Practical Law.)

Arbitration Rules

When deciding whether to arbitrate a construction dispute, parties should consider what rules may apply. The rules governing construction arbitrations vary, and parties may agree on the applicable rules either in a pre-dispute arbitration provision in their contract or during the dispute itself. The applicable arbitration rules may be, for example:

• Specific institutional:
• • construction arbitration rules; or
  • commercial arbitration rules.
• Ad hoc arbitration rules.

Some arbitral institutions, such as the American Arbitration Association (AAA) and JAMS, provide arbitration rules specifically for the construction industry (see, for example, the AAA, Construction Industry Arbitration Rules and Mediation Procedures (AAA Construction Rules) and JAMS, Construction Arbitration Rules and Procedures (JAMS Construction Rules)). Whatever rules the parties choose, most construction arbitrations use practices similar to those in commercial or ad hoc arbitrations, such as rules or norms for taking evidence or exchanging disclosures (see, for example, AAA, Discovery Best Practices for Construction Arbitration).

(For more on the steps for conducting arbitration under the AAA Construction Rules and JAMS Construction Rules, see Procedural Steps in AAA Construction Arbitration and Procedural Steps in JAMS Construction Arbitration on Practical Law.)

The rules governing construction arbitrations vary, and parties may agree on the applicable rules either in a pre-dispute arbitration provision in their contract or during the dispute itself.

Construction Arbitrators

Before starting a construction arbitration, a party should consider what qualifications and expertise it wants the arbitrators to have. Depending on the applicable arbitration rules, the parties may select the arbitrators or provide input into the selection process.

The pool of arbitrators available for appointment to a construction arbitral panel generally consists of:

• A large group of commercial arbitrators with vast experience presiding over complex cases and some experience in the construction industry. There are many commercial arbitrators with some limited experience working in the construction industry or serving as construction arbitrators at some point in their careers. These arbitrators are often well qualified to manage and oversee complex construction arbitrations and may offer procedural or substantive insights that expedite the arbitration process and help resolve the dispute. However, they sometimes lack an understanding of construction industry practices and jargon and features of construction law.
• A small group of construction industry insiders with significant experience serving as arbitrators and who only seek appointments in construction arbitration matters. These arbitrators have extensive experience as both construction industry legal professionals and construction arbitrators. They specialize in construction arbitration and seek appointments in construction arbitration matters because of their subject matter expertise in the field.
• A small group of sophisticated technical experts with experience overseeing construction disputes as arbitrators, mediators, or dispute board members. Parties to construction arbitrations sometimes appoint technical experts to serve as arbitrators. In these instances, the technical expert’s background (typically engineering or architecture) may make them uniquely qualified to understand and adjudicate a particular dispute, even though they lack legal training. Although many of these technical experts receive significant training in managing arbitration proceedings, there is a risk (or at least a perceived risk) that these arbitrators may be unqualified to decide thorny legal issues. In many cases, technical expert arbitrators are appointed as members of three-arbitrator panels.

The construction industry is relatively small, and parties must be extra vigilant when vetting prospective industry insiders to serve as arbitrators. Industry insiders may be parties on one project and arbitrators on another. Therefore, parties must take care to understand whether:

• The arbitrator candidate has any past or present connections with any of the parties, their counsel, or their experts.
• Any such connections may jeopardize the arbitrator’s ability to decide the claims independently and impartially.

Beginning with the 2024 version of the AAA Construction Rules, absent agreement of the parties, all arbitrators, including those nominated by a party, must be on AAA’s National Roster of Arbitrators (AAA Construction Rule R-15(a)). In a contract with a non-US party, counsel should consider specifying the International Arbitration Rules, which do not have this limitation, as the rules that will govern the construction arbitration (International Arbitration Rules, Article 13).

(For more on appointing construction arbitrators under the AAA Construction Rules and JAMS Construction Rules, see Procedural Steps in AAA Construction Arbitration and Procedural Steps in JAMS Construction Arbitration on Practical Law.)

Construction Experts

When preparing to arbitrate a construction dispute, a party should consider the type of expert best suited to present the party’s position. Construction arbitration usually involves one or more delay experts, cost experts, and technical experts.

Delay Experts

Delay experts have specialized expertise in scheduling the many phases of a construction project. Parties use delay experts to conduct forensic examinations of the project schedule to determine how or whether specific events delayed a project. They provide important expert evidence on delay and other time-related claims.

(For more on delays and time-related claims, see Construction Arbitration in the US on Practical Law.)

Delay experts have specialized expertise in scheduling the many phases of a construction project. Parties use delay experts to conduct forensic examinations of the project schedule to determine how or whether specific events delayed a project.

Cost Experts

Cost experts (also called quantum experts) are experts with specialized skill in accounting or project cost management. Parties use cost experts to quantify or validate the value of individual claims. These experts often work with delay experts to quantify:

• Time-related costs.
• Inefficiency or lost productivity claims.

Technical Experts

Technical experts are typically specialized professionals the parties use to provide expert evidence on technical issues that arise in a construction dispute. Technical experts include:

• Architects.
• Engineers, including:
• • structural engineers;
  • mechanical engineers; and
  • geotechnical engineers.

In arbitrations concerning particularly complex construction projects with multiple individual claims, parties often engage several different types of technical experts to support their respective claims or defenses.

Pre-Hearing Issues

The process for starting an arbitration depends on the rules governing the proceeding and the arbitral institution, if any, administering the case. Generally, a claimant (similar to a plaintiff) begins the process by submitting a request or demand for arbitration, and the respondent (similar to a defendant) responds by submitting an answer.

After the parties submit their pleadings, but before the construction arbitration hearing begins, the arbitrators and parties should consider and address several pre-hearing matters in a preliminary conference.

Statements of Claim and Statements of Defense

Many construction arbitrations are expansive proceedings involving multiple parties and claims. Detailed statements of claim and statements of defense provide a helpful roadmap of the parties’ respective positions. The parties generally submit these statements at the start of the case, usually after the claimant has filed its request for arbitration and the respondent has submitted its answer.

Statements of claim and statements of defense are detailed legal submissions that set out each party’s claims and defenses. They are the norm in international construction arbitration and are becoming more common in US domestic construction arbitration.

In most international construction arbitrations, the parties’ statements of claim and statements of defense serve both as pleadings and memorial presentations of the parties’ prima facie cases. They incorporate all of the submitting party’s supporting exhibits, witness testimony, and expert reports. (See generally Albert Bates, Jr. & R. Zachary Torres-Fowler, Internationalizing Domestic Arbitration: How International Arbitration Practices Can Improve Domestic Construction Arbitration, 74:3 Disp. R. J. 1, 8-16 (June 2020).)

In US domestic construction arbitrations, where use of statements of claim and statements of defense is increasing, the statements are usually less robust than the memorial submissions in international construction arbitrations. For example, the statements of claim and statements of defense typically:

• Do not attach supporting:
• • exhibits;
  • witness statements; or
  • expert reports.
• Contain less detail than the memorial submissions that parties use in international arbitration.

These submissions in US construction arbitrations are more akin to the pleadings in court litigation. They sometimes provide only a summary arbitration demand or answer, but the trend in recent years is to include detailed itemizations and descriptions of the facts and legal theories underlying each party’s claims and defenses. This approach saves the parties time and effort because it allows each party to understand the other party’s position before beginning the discovery phase of the arbitration (see Document Exchange and Depositions below).

Preliminary Conference

A construction arbitration preliminary conference (also called a preliminary hearing, pre-hearing conference, or case management conference) is similar to a preliminary conference in a commercial arbitration. It is the first opportunity for the parties and their counsel to meet with the arbitrators to discuss and schedule the arbitration proceedings. Because construction arbitrations frequently raise many simultaneous complex claims, the preliminary conference plays a critical role in ensuring an organized and efficient construction arbitration process.

At the preliminary conference, the parties should discuss with the arbitrators any issues concerning:

• The case schedule.
• Any party’s need or desire for supplemental pleadings.
• The expansion of the arbitration due to, for example:
• • joinder of other parties; or
  • consolidation of other claims.
• The procedural mechanisms for streamlining the proceedings, such as:
• • bifurcation; and
  • dispositive motions.
• Plans for site visits by the arbitrators and experts.
• Discovery the parties may want to undertake, including:
• • document exchanges; and
  • depositions.

Arbitration Schedule

When preparing an arbitration schedule, the parties and arbitrators discuss and map out the procedural stages of the case and set dates for the hearing. A construction arbitration can span a few months to several years, depending on:

• The number of claims.
• The project’s scale.
• The complexity of the issues.

Parties and arbitrators must carefully consider the available procedures that can help them:

• Advance the proceedings.
• Maintain realistic expectations about deadlines.
• Ensure that all parties are prepared to present their respective cases at the hearing.

Joinder and Consolidation

Construction arbitrations often involve multiple claims by and among numerous parties, including:

• Owners.
• Contractors.
• Subcontractors.
• Vendors.
• Architects.
• Engineers.

(For more on the key actors in construction arbitrations, see Construction Arbitration in the May 2023 issue of Practical Law The Journal.)

Joinder of related parties and consolidation of related or parallel proceedings that involve common questions of law and fact can dramatically increase the arbitration’s efficiency. Joinder and consolidation:

• Allow the various parties impacted by a dispute to present their diverse claims in a single proceeding.
• Increase the likelihood that the arbitrators:
• • receive all relevant evidence holistically; and
  • allocate liability appropriately.

Although multiparty arbitrations are inevitably more complex than bilateral arbitrations, the benefits of joinder and consolidation far outweigh the risks of inconsistent outcomes from parallel litigation and arbitration proceedings.

Joinder and consolidation may be available if the parties agree or if the arbitration rules permit it, such as:

• AAA Construction Rule R-7.
• JAMS Construction Rule 6.

Parties also may use joinder and consolidation to compel a third party to join the case. Before seeking to consolidate claims or join non-parties to the proceedings, parties must research the applicable rules because the procedures vary. For example, under:

• The AAA Construction Rules, a special arbitrator decides whether to permit a third party’s joinder (AAA Construction Rule R-7).
• The JAMS Construction Rules:
• • JAMS decides whether to consolidate two or more cases (JAMS Construction Rule 6(e)); and
  • the arbitrator decides whether to permit joinder of a third party (JAMS Construction Rule 6(f)).

The factors that arbitral institutions or arbitrators, as applicable, weigh in deciding whether to permit joinder and consolidation include:

• Whether the same institutional arbitration rules apply to all of the parties’ various arbitration agreements.
• The stage of the pending arbitration, particularly whether the arbitrators have been appointed.
• Whether the third parties or other parties to the arbitration would suffer prejudice by the proposed joinder or consolidation.

In proceedings where joinder or consolidation is unavailable, an intermediate actor (such as a contractor separately in privity with an owner and subcontractor) whose contracts do not all contain an arbitration provision may be at risk of prosecuting or defending against the same claim in different forums. The intermediate actor may also face inconsistent judgments, especially for pass-through claims, which are common in construction disputes.

Pass-through claims typically arise where a subcontractor suffers damages resulting from an owner’s conduct and seeks to recover these damages by asserting a claim against the contractor. The contractor in turn passes through the subcontractor’s claim by asserting it against the owner in arbitration. Joinder of the subcontractor to an arbitration between the contractor and owner allows pass-through claims to proceed in a streamlined fashion.

However, the contractor’s inability to join the subcontractor to the case may increase the contractor’s potential exposure. In this situation, the contractor may seek to enter into a liquidating agreement with a subcontractor or other third-party and assert a pass-through claim in the arbitration (or litigation) in an effort to mitigate its risk. In a liquidating agreement, the contractor acknowledges liability for the claim and passes it through to the owner by asserting it in the arbitration. In exchange, the third-party agrees to accept whatever amount the contractor ultimately recovers from the owner for the claim in the arbitration. As a result, although the subcontractor is not a party to the arbitration, it receives the benefit of any award for its claim in the arbitration.

Pass-through claims typically arise where a subcontractor suffers damages resulting from an owner’s conduct and seeks to recover those damages by asserting a claim against the contractor. The contractor in turn passes through the subcontractor’s claim by asserting it against the owner in arbitration.

Bifurcation

Effectively managing a construction arbitration is challenging for the parties and arbitrators because a construction case typically involves a significant number of individual claims. One way to manage the process efficiently may be to bifurcate or otherwise divide the proceedings into different tracks organized by subject matter.

For example, the arbitrators may require the parties to conduct discovery or present evidence at the hearings by grouping together:

• Various sets of factually related claims (such as change order claims, claims involving a specific discipline, or an owner’s entitlement to liquidated damages) (for more on common construction arbitration disputes, see Construction Arbitration in the May 2023 issue of Practical Law The Journal).
• Liability issues on one or more claims before addressing the amount of damages (quantum).

By staging the proceedings this way, the parties may be able to resolve the remaining claims on their own without the need for subsequent arbitration hearings.

Dispositive Motions

Early disposition of one or more claims or issues may be appropriate in some cases. The construction arbitration rules of several arbitral institutions expressly permit dispositive motions to narrow or dispose of claims or issues before the hearing (for example, AAA Construction Rule R-34; JAMS Construction Rule 18). Even where the applicable rules do not address dispositive motions, the parties and arbitrators should discuss whether dispositive motion practice would be useful in streamlining the proceedings and increasing efficiency. (For more on dispositive motions, see Dispositive Motions in US Arbitration on Practical Law.)

Site Visits

The parties and arbitrators should discuss the need for and advisability of site visits (also called site inspections), especially if the case involves an unremedied or unresolved issue at a site. Site visits allow:

• The experts to gather information to formulate their opinions.
• The arbitrators to see the disputed issues up close and in the context of the whole project.

The parties should carefully consider the potential cost and delay of any site visit. They should consult with the arbitrators to reach an agreement on the basic protocol governing the process. Some arbitral institutions provide guidance on effectively managing site visits (see, for example, AAA, Discovery Best Practices for Construction Arbitration, at 2-3).

If a physical site visit is not possible (for example, due to cost), parties may consider arranging a virtual site visit, which typically involves use of videoconferencing or drones. However, virtual site visits are imperfect substitutes because they may not provide experts and arbitrators with a complete perspective on the layout and scale of a particular project.

Document Exchange

Document exchange practices in construction arbitrations vary depending on whether the arbitration is an international or US domestic case.

Like international commercial arbitrations generally, most international construction arbitrations tend to have limited and specific document exchange procedures that follow the standards set out in the International Bar Association’s Rules on the Taking of Evidence in International Arbitration (IBA Rules) (see IBA Rules on the Taking of Evidence in International Arbitration). This narrow approach permits the parties to gain access to documents that are relevant and material to disputed issues in the case without the risk of a party engaging in an unwanted fishing expedition.

Conversely, parties in US domestic construction arbitrations generally engage in broader document exchanges that are more akin to the document production practices in US federal and state courts. However, even in the US, construction arbitrators and arbitral institutional rules usually impose some limitations on the amount of permissible document exchange, balancing the size and complexity of the case against the cost of production (AAA, Discovery Best Practices for Construction Arbitration, at 3-4).

Depositions

Like document exchanges, the use and extent of depositions in a construction arbitration depend on whether the case is an international or US domestic arbitration.

Depositions are uncommon in international arbitrations. Instead, parties usually rely on other parties’ written witness statements and expert reports to understand each other’s positions before the hearing.

The use of depositions is more widespread in US domestic construction arbitrations where parties, counsel, and arbitrators are accustomed to US litigation practices. However, even in the US, arbitral institutional rules discourage parties from extensively using depositions in a construction arbitration (see generally AAA, Discovery Best Practices for Construction Arbitration, at 4). For example:

• The AAA Construction Rules only address using depositions in large, complex cases and, even then, limit their availability to exceptional cases in the arbitrators’ discretion (AAA Construction Rule L-4(f)).
• The JAMS Construction Rules do not address depositions at all.

Construction Arbitration Hearings

A construction arbitration hearing generally proceeds in the same manner as a commercial arbitration hearing. However, because construction cases typically involve many claims, parties, and issues, construction arbitration hearings present unique time management challenges to the parties and arbitrators. For this reason, counsel have developed certain shortcuts and streamlining methods to keep construction arbitration hearings focused and efficient.

Opening Statements

Like commercial arbitration hearings, most international and domestic US construction arbitration hearings begin with the parties’ opening statements. Opening statements allow the parties to quickly summarize their respective positions for the arbitrators and each other.

For efficiency, the parties and arbitrators sometimes decide to streamline the proceedings by, for example:

• Agreeing to forgo formal opening statements, if the parties have already provided extensive pre-hearing briefing.
• Using presentation aids, such as PowerPoint, to summarize a large amount of information in a visual and meaningful way.

Witness Statements or Oral Direct Testimony

As in court proceedings, parties in a construction arbitration hearing present their evidence using witnesses. The witnesses may provide evidence in the form of either:

• Written witness statements.
• Live oral testimony.

In international arbitrations, parties most often present their evidence using written witness statements, which the parties exchange before the hearing. Any other party may then ask the arbitrators to require the proffering party to present the witness in person for cross-examination or questioning by the arbitrators during the hearing. (IBA Rules, Art. 4.) As a result, unlike US domestic construction arbitrations, international construction arbitrations usually involve no live direct testimony. Sometimes, however, international arbitrators permit a party to conduct a brief direct examination to allow the witness to introduce themselves, explain their role in the dispute, and address any issues that the witness may not have previously had the opportunity to address in the witness statement.

Using written witness statements enables the parties to better understand each other’s position, which crystalizes the core issues in dispute before the hearing. Some practitioners believe using witness statements leads to a far more efficient and cost-effective arbitration hearing (see V.V. Veeder, Introduction to Arbitration and Oral Evidence 7, 7-8 (2005)).

In US domestic construction arbitrations, some arbitrators and counsel prefer to use written witness statements because it is an efficient method. However, most parties in US domestic construction arbitrations present witnesses to testify in person during the hearing. Many US practitioners believe that live oral direct testimony is more compelling than written witness statements and outweighs the benefits of written statements’ increased efficiency.

Order of Presentation

Like US courtroom procedures, US domestic construction arbitration practices typically divide the case presentation by party, where the claimant presents its case first, followed by the respondent. In most US construction arbitration hearings, the claimant presents all of its fact witnesses and expert witnesses before the respondent.

By contrast, international construction arbitration practices, like international commercial arbitration practices, usually organize the hearing by witness type. Specifically, each party, beginning with the claimant, presents its fact witnesses, followed by each party’s expert witnesses. (IBA Rules, Art. 8.4.)

In construction arbitrations with multiple simultaneous claims, fact and expert evidence can involve numerous issues and witnesses. Grouping competing fact witnesses and expert witnesses respectively provides helpful efficiencies in these cases. For example, this order of presentation reduces the time between two competing witnesses on a specific topic, increasing the likelihood that:

• The testimony of both witnesses remains fresh in the arbitrators’ minds.
• The arbitrators can better appreciate the distinctions between the two witnesses’ positions.

Streamlining Methods

Construction arbitration hearings often involve one or more features that parties and arbitrators may use to streamline the proceedings.

Issue List

The parties jointly prepare an issue list, which identifies the dispositive issues in the case. Some counsel use these lists in both international and US domestic construction arbitration hearings because they help streamline the proceedings by enabling the arbitrators to:

• Focus on the core issues in the case.
• Digest the relevant information for numerous claims.

Other counsel do not use issue lists because they believe the parties may find it difficult to agree on the dispositive issues. This difficulty may lead to either:

• Further acrimony between the parties.
• The final issue list being so diluted that it is unhelpful to the arbitrators.

Chess Clock

Although not unique to construction arbitrations, using a chess clock to manage time has become more common in international and US domestic arbitrations. When using a chess clock, each party has a set amount of hearing time for the entire duration of the hearing. Each party can use that time to present their case as they deem necessary, but a party may not exceed the total time allocated to it.

Using a chess clock may increase the efficiency of a large, complex arbitration hearing because it:

• Requires the parties to focus their efforts on the most important elements of their case.
• Ensures that the parties complete their case presentations within the allotted timeframe.

Witness Conferencing

Witness conferencing (also called hot tubbing) has become a relatively common practice in international construction arbitrations and, to some extent, in US domestic construction arbitrations. Witness conferencing involves the simultaneous appearance and examination of two witnesses at the hearing, most often experts opining on the same subject matter (see, for example, Chartered Institute of Arbitrators, Guidelines for Witness Conferencing in International Arbitration (Apr. 2019)). The expert witnesses usually sit next to one another and field questions from the arbitrators and parties. Because the expert witnesses appear at the same time:

• The arbitrators and parties can better identify the distinctions between the competing testimony.
• The expert witnesses can respond to each other’s positions in real time.

Joint Expert Reports

Parties in international construction arbitrations frequently have their respective experts jointly prepare expert reports. The parties meet and confer, often outside the presence of counsel, to:

• Reach an agreement on particular premises underlying their expert opinions.
• Identify the key areas of dispute.

The experts then document these agreements and disagreements in a joint report for the arbitrators’ review.

Arbitrators find these reports helpful because they usually force the experts to crystalize the key points of disagreement. This is particularly valuable in construction arbitrations involving many experts because it helps arbitrators cull down the amount of information they must process to render a decision.

Scott Schedules

Scott schedules have become particularly helpful tools for arbitrators in complex construction arbitrations because they organize a large volume of information in a handy and readable format. Scott schedules are tables, which the parties can unilaterally or jointly prepare, that provide the arbitrators with:

• A high-level summary of each party’s position.
• The amount in controversy.
• The location of supporting evidence and testimony.

The parties need not necessarily agree about the contents of a jointly prepared Scott schedule. They may create a joint schedule where each party identifies the requested information about its own claims and defenses.

Sometimes, parties use Scott schedules as part of their post-hearing submissions. In this situation, each party prepares its own Scott schedule to:

• Summarize the information it presented during the hearing.
• Provide the arbitrators with a reference guide to the exhibits and hearing transcripts that support the party’s position.

Post-Hearing Submissions and Closing Arguments

Parties in construction arbitrations often conclude the proceedings with either post-hearing submissions or closing arguments. Post-hearing submissions can be time-consuming and costly to prepare. They often involve two rounds of submissions consisting of:

• Opening submissions by each party.
• Answering submissions by each party responding to the other party’s submissions.

Where time is of the essence or the cost of preparing post-hearing submissions is too high, parties may opt to present live closing arguments to conclude the proceedings. The arbitrators usually schedule these arguments several weeks after the close of the arbitration hearing. This allows the parties sufficient time to review and organize the evidence as they prepare their oral presentation summarizing the case.

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