ALL TOGETHER NOW: INNOVATIVE CONTRACT MANAGEMENT WITH DISPUTE BOARDS

PRESENTERS:Adrian Bastianelli, Moderator Peckar & Abramson, P.C.Washington, DC

Warren Bullock Sebastopol, CADoug Holen Santa Fe, NM

American Bar AssociationForum on the Construction Industry2012 Fall Meeting

OVERVIEW OF DRB PROCESSObjectiveSelecting the DRB MembersSite VisitsHearingsRecommendationsBenefitsStatisticsDRB Foundationwww.drb.orgThe Washington Experience

DRAFTING THE CONTRACTSpecification provisionsThree Party AgreementDRB proceduresWhat should be included?Qualifications of DRB membersEthics requirements (neutrality)Selection process for DRB membersTiming of selection of DRB membersPayment of DRB members

DRAFTING THE CONTRACTTiming of regular meetings and site visitsMethod of referral of disputes to the DRBPre-hearing submissionsHearing proceduresDRB recommendationsBinding or non-bindingAdmissibility of DRB recommendationsInformal or advisory opinionsClarification and reconsideration

SELECTING THE DRBHow do you select the DRB members?Party appointed with right of each party to reject member without causeMutually selectedParties designate several and other party selects one from that groupAre attorneys allowed to be members of a DRB?

SELECTING THE DRBCan DRB members appointed by a party really be neutral?Are DRB members governed by any ethical standards?Is a DRB member required to have DRB training?How much do DRB members get paid?

REGULAR MEETING AND SITE VISITHow often?What is discussed at the regular meetings?Why make regular meetings?Observe the work in the event of a future claimObserve the peopleDevelop a relationship of trust with the partiesForce a real time discussion of the issues

REGULAR MEETING AND SITE VISITDoes the DRB become involved in the construction process?What if the DRB member observes a construction defect?Does the DRB try to help the parties resolve future problems?What happens if the parties decide to save money by canceling the regular meetings?

THE DISPUTES PROCESSWhat kind of discovery do the parties get?What do the prehearing submissions look like?Who should make the presentation?Project personnelHome office personnelConsultant or expertLawyer

THE DISPUTES PROCESSWhat is the place of the lawyer in the presentation of the dispute?How can you decide a claim without cross examination?

THE RECOMMENDATIONSWhy recommendations and not a decision or award?Should the recommendations be binding?Should they be admissible in court? What do the recommendations look like?What is the key to drafting the recommendations?

THE RECOMMENDATIONSCan the DRB do equity or is it bound to enforce the contract language and the law?

THE ADVISORY PROCESSWhy have such a process?Can the DRB fairly consider the claim in the formal process once it issues recommendations in the advisory process?

OTHER ISSUESWhat do you do if one party becomes dissatisfied with a DRB member?Should the DRB act proactively?Should the DRB mediate or assist parties in negotiation?Can the DRB handle subcontractor or design professional claims?

OTHER ISSUESCan the DRB be effective on a small project and what is a small project?Should stepped negotiations or mediation precede the DRB process?

TO DRB OR NOT TO DRBReasons to include a DRB provision in the contract?Results in discussion of issues regularly in front of 3 neutrals whom the parties want to impressAvoids disputes even reaching DRB hearing stageProvides recommendations from 3 experts who the parties trust and who have seen the work Real time resolutionExpeditious and low cost

TO DRB OR NOT TO DRBReasons to include a DRB provision in the contract?Non-adversarial proceedings, allowing the parties to maintain good relations during the projectAvoids the end of job omnibus claimAvoids litigation

TO DRB OR NOT TO DRBArguments against including a DRB?CostTime commitmentNon-bindingDRB may do equity and not enforce the contractNo discovery or cross examinationRecommendations could sway court or jury

SUMMARYDo DRBs really work?Will they put the construction litigator out of business?

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