[PODCAST] JAMS Neutrals Discuss Evolution Of ADR For Resolving Construction Disputes

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Founded in 1979, JAMS is the world's largest private provider of alternative dispute resolution (ADR) services. A pioneer in virtual ADR, JAMS has conducted thousands of virtual ADR sessions. Our panel includes over 400 arbitrators and mediators, handling an average of 18,000 cases annually in the US and abroad.
In this podcast, JAMS neutrals John W. Hinchey, Esq., and Leslie King O'Neal discuss the evolution of alternative dispute resolution (ADR) within the construction space.
United States Litigation, Mediation & Arbitration
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In this podcast, JAMS neutrals John W. Hinchey, Esq., and Leslie King O'Neal discuss the evolution of alternative dispute resolution (ADR) within the construction space. Their conversation starts with sharing their observations on how ADR has changed within the construction space during their respective careers. They point to the rise in different types of ADR—outside of arbitration—for resolving construction disputes, how the type and volume of evidence has changed and how new technology has created different concerns relating to the security and management of data. Mr. Hinchey also discusses his experience as counsel for the U.S. Olympic Committee regarding building the Olympic venues in Atlanta for the 1996 Olympics and the types of challenges that typically emerge during these projects.

Mr. Hinchey and Ms. King O'Neal also discuss the features of international arbitration that they would like to see more widely adopted in the United States, as well as their thoughts on the appropriate role of discovery within an arbitration. The neutrals then weigh in on common areas that can cause disputes to emerge and what they anticipate on the horizon in terms of how ADR proceedings will play out in the construction industry. They conclude with a discussion of AI and where it fits within the context of an ADR professional's role in a dispute.

[00:00:00] Moderator: Welcome to this podcast from JAMS. In this episode, we're going to talk about the evolution of ADR and construction with two neutrals who have spent decades in the field. First, we have Leslie King O'Neal, whose experience includes serving as in-house counsel at one of the largest commercial general contractors in the country. For her service and work in the area, Leslie was recently awarded the Cornerstone Award, the highest honor presented by the American Bar Association Forum on Construction Law. We also have John Hinchey, who is a mediator and arbitrator and listed on several U.S. and global panels. Before joining JAMS, he was a partner at the international law firm King & Spalding, where he led their commercial contracting and construction disputes practice for 18 years.

[00:00:50] He is also a former recipient of the Cornerstone Award, so I'm very pleased to have both of you on the program. Leslie, let's start with some—some history here. You all know each other, you and John. Can you tell us how that relationship began?

[00:01:07] Leslie King O'Neal: Yes. So, it really began with the Forum on Construction Law—the ABA organization—and both John and I were working on Division One, which is dispute avoidance and resolution. And we were both on the Division One steering committee back in the mid-'80s. John was already very well known in construction law circles, as were several other of the members of that committee.

[00:01:39] I was kind of the new kid, relatively speaking, and found this group to be extremely impressive. I found it very educational being around them. I have likened it to being somebody from the junior varsity that got called up to be on the dream team, and I felt like if as long as I didn't drop the ball and just paid attention, I could learn a lot, and that did happen. John has been a role model for me and many other construction lawyers throughout our careers and is really an icon in the field.

[00:02:16] Moderator: Hmm. John, do you remember this up-and-comer named Leslie?

[00:02:21] John Hinchey: I certainly do. I think what Leslie and I had most in common was that we were both passionate about dispute resolution and, frankly, how to make it better, more efficient, more economical and more fair and just for the parties. So, we found ourselves on the same committee, and so we started putting our heads together on what type of programming we should try to develop, you know, for the—for the membership. And fortunately, we had a gentleman by the name of Ed Corwin, who was similarly passionate, and he led a series of programs—which we may talk about a bit later—on managing and litigating the complex construction dispute.

[00:03:04] So Leslie and I probably first engaged when we started, you know, designing the program for that. Since then, we've constantly crossed paths, both in meetings, both going to various seminars and speaking, writing and just being on the construction circuit.

[00:03:25] Moderator: Well, John, you have seen some of the biggest changes in ADR over your career. You were there at the forefront at the beginning. How would you characterize the evolution of mediation construction over your career?

[00:03:42] John Hinchey: When I began my career, there were really only two primary ways of resolving disputes. You either went to court or you settled the matter between the parties. And yes, arbitration did exist as an alternative to litigation, but it was really rarely used. And if anyone used the acronym ADR during the, you know, late '70s, '80s, they really meant arbitration. But the reality is that both Leslie and I had what I think is the unique good fortune of starting our careers during what I would say was the most creative, probably even revolutionary, time of dispute resolution, but particularly in construction disputes; for example, starting with the American Bar Association, Judicial Reform and [the] Pound Conference that occurred in 1976. I actually had the opportunity to attend that. That was a conference where specialized courts were proposed for resolving different types of commercial cases, such as domestic relations cases, juvenile cases and so forth.

[00:04:42] So, taking that concept of creating different courts for different disputes and then continuing on into the '80s and '90s, the construction industry literally became a laboratory for experimenting with various types of alternative dispute resolution. During that time, there were a host of seminars, study commissions, surveys, articles, books—all with a goal of coming up with a variety of procedures to make resolution of construction disputes more efficient, more economical, but at the same time making sure that they were fair and just. As a result of those efforts by many practitioners, like Leslie and myself, I think we now have what I would call a smorgasbord of techniques and processes that are available for lawyers and clients to choose from, depending on the nature of their project. I mean, we have mandatory negotiation between executives, partnering project alliance and mediation dispute review boards, fast-track arbitration, many, many others.

[00:05:44] So, today I think there should be no reason why parties should complain about the high cost or delays associated with litigation or arbitration because they literally have it within their power at the contracting stage to design their dispute resolution process to be as fast or as efficient as they want it to be.

[00:06:05] Moderator: Leslie, John mentioned the laboratories of construction ADR. Do you remember those days? And how would you kind of characterize what you've seen over your four-decade career?

[00:06:17] Leslie King O'Neal: Well, yes, as John mentioned, there was a flourishing of creativity among many, many construction lawyers, as well as academics and others focused on how to make a dispute resolution better.

[00:06:32] I remember—and I'm sure John will too—a task force that was started by Jim Groton—another Atlanta attorney—the Dispute Avoidance and Resolution Task Force, called DART, and I remember attending a conference of that group, and I believe John was there as well. Then that work continued on for a long time. There still is a number of writings and people out there discussing the fact that the best way to resolve disputes is to try to avoid them in the first place, which of course is easier said than done, but there are techniques for approaching disputes which are inevitable and trying not to avoid escalating them into bigger disputes.

[00:07:17] As for one thing and the second—and John mentioned this as well—is that mediation as a concept really took hold and flourished starting around the mid-'80s, I want to say, and has now expanded to not just litigation, but appellate processes and all other points in in a dispute.

[00:07:40] Moderator: Absolutely. I want to take you both back to 1988. You both were involved in presenting a program called "Managing and Litigating Complex Construction Cases." What do you remember about that presentation? And if you were putting it on today, what would change, John?

[00:08:00] John Hinchey: Well, when we designed the 1988 program, the primary focus of our attention, I believe, was on the preparation of a construction case. And clearly the principles behind the techniques that we presented at that time still hold true. But I think what has changed is the technology between what was available in 1988 and what's available today. I mean, just one notable example, the vast bulk of documents at that time were hard copies and filing cabinets or banker's boxes, whereas today, virtually all documentation that makes up a construction case are in electronic form.

[00:08:39] So, you know, at least from my perspective and having served as an arbitrator, a mediator now for over—over three decades, in designing such a program, I would focus more on case presentation techniques specifically to arbitrators because very few construction cases now ever go to trial.

[00:08:59] And for me, having served as an arbitrator or a decision-maker, the most important focus for the advocate should be to make certain that the facts of the case and the context of the facts and the technological aspects of the case are clearly presented and clearly understood by the arbitrators. I mean, [here are] just a couple of examples, which are often overlooked in—in almost every construction case. One of the first submissions that should be given to the arbitrators is just a simple timeline or a chronology of events that occurred during the project.

[00:09:34] Moderator: Mm-hmm.

[00:09:35] John Hinchey: And then the advocate should give the arbitrators a list of the key parties and witnesses that are going to be discussed during the case, along with their pictures, titles and the role that they're going to play. And then thirdly, I would make certain that the technology involved in the case—whether it be, you know, pouring a concrete foundation or designing a nuclear power plant—is presented in a graphic, easy-to-understand format. So, I guess, in summary, I would say I would focus on keeping it short and sweet. I would focus on the key message. I would use diagrams and models. I would keep it jargon-free. In other words, I would keep it simple.

[00:10:13] Leslie King O'Neal: I would add onto that, that not only is it now that documentation is done electronically, but there's so much more of it than there was back in those days. Just in the last five years, the amount and the use of technology in design and construction has exploded with the use of BIM, not merely for design, but as a collaboration tool that contractors, subcontractors and suppliers can work in the model. At the end of the day, the end of the project, the contractor no longer hands the owner a set of blueprints marked up with a red pencil, but a three-dimensional model of their project that's the as-built—and sometimes what's called a digital twin—which they can then use for their future maintenance and for other things in the future. When they want to expand or remodel, they have the exact dimensions. They know exactly where the pipes were laid, and then, you know, the old days of daily reports that were written on a spiral-bound notebook and kept in the superintendent's back pocket and usually stained with tobacco juice or ketchup—now those are done electronically. And they use QR codes to scan it and show where, you know, things happened and so forth. So, it's a whole new world, and it requires a lot more attention. And, as John said, [we now have the] ability to organize and summarize this data in an understandable way for an arbitrator to be able to comprehend it.

[00:11:55] And then the second thing, of course, is that, you know, managing all of this data and keeping it confidential, keeping it, you know, secure—those kinds of problems we didn't really face back in 1988, but it's a huge problem now.

[00:12:11] Moderator: Hmm. John, you—you were counsel for the U.S. Olympic Committee regarding building the Olympic venues in Atlanta, Georgia, for the 1996 Olympics. What do you remember about that experience? What were some of the challenges you faced with that project? And now that we have sort of the Olympics coming up in Paris, what kind of disputes would you foresee emanating from them knowing what you know about your experience in Atlanta?

[00:12:39] John Hinchey: Well, without a doubt, that was a once-in-a-lifetime opportunity for any construction lawyer to take on. But the Games were not just one project. They involved about, in our case, about 30 different projects, some of which were, you know, renovations of existing structures and others were totally greenfield. But there were several aspects of these projects, I think, that were fundamentally different from the typical construction project.

[00:13:06] First, there could be absolutely no time extension of the final completion dates.

[00:13:12] Moderator: Hmm.

[00:13:12] John Hinchey: The Games had to begin on the opening date, and that meant, in some cases, the Olympic Committee had to let contingency contracts so that if a contractor did default, there would be another one to step in and take its place.

[00:13:27] And then secondly, there could be no increase in the contract price. Because the budget was absolutely fixed, it could not be expanded. And that meant that the contractors had to assume virtually all of the risk for the unknown or any unexpected problems that might come up. Hmm. Then thirdly, there could be no litigation or arbitration during the course of the projects. Any claim—to the extent that there were grounds for a claim—had to be asserted after the project was completed and when the Games were finished. So, you know, one might ask, "Why would any reasonable contractor take on such risks?"

[00:14:01] Moderator: Right.

[00:14:02] John Hinchey: Well, I mean, first, most of the contractors were large companies who formed joint ventures or partnerships with several other contractors so that they could better spread the risk. And then besides that, this was the Olympic Games, so it's a glory project that every contractor wanted on their resume. And as a matter of fact, all the Olympic venues and the '96 Games were finished on time and, for the most part, on budget. And you might ask, "How did that happen?"

[00:14:31] Well, I think the primary reason is that we had a—a great managing project director from Leslie's hometown in Orlando. His name is Bill Moss, who had, I think, the ability to identify and deal with little problems before they became big problems. So, I think the lesson for the Paris [Olympics] organizers and others who are going to be responsible for future projects of that type, it's just—it's very simple, but it's very challenging—to design and administer the project so that anything that could go wrong is anticipated and provided for in the contracts and then the design and administration. So, in other words, failure is not an option.

[00:15:11] Moderator: Mm-hmm.

[00:15:12] John Hinchey: So, be ready with plans A, B and C if things do go wrong.

[00:15:16] Moderator: Hmm. Yeah. Stepping into the more sort of theoretical realm, you've written a lot about international arbitration, including a textbook now in its third printing. What are the main differences between international arbitration and arbitration in the U.S.?

[00:15:32] John Hinchey: Well, first of all, arbitration becomes international if one of three things occur: either the parties are located in different countries, the location of the project is in a different country from where the parties reside or the parties agree that the dispute is going to be treated like an international arbitration.

[00:15:49] So, it's fairly easy to find yourself in an international arbitration without realizing it. And then traditionally, an international arbitration takes on more what I would call inquisitional aspects, where the arbitrator controls the case and investigates the facts. Whereas in the English or American arbitration [model], it's much more adversarial, and the parties and their lawyers manage and control the case.

[00:16:16] And there's actually a philosophical difference between the two approaches too. The French, or the continental, approach is that the primary goal of commercial arbitration is to get the dispute resolved as quickly and decisively as possible with a minimum of discovery. Whereas the American/English philosophy of dispute resolution is to get to the truth of the matter.

[00:16:41] Now, in short, one could say that the continental idea was to get it done, whereas the Anglo-American concept is to get it right. So, I would say that over the past 20 years or so, that traditional dichotomy has evolved to the point where it could be said now that international arbitration is much more adversarial. And frankly, it's taken on many more aspects of American commercial arbitration, so that whether you're practicing international arbitration or strictly U.S.-based arbitration, you're going to find yourself following pretty much the same procedures.

[00:17:19] Moderator: Hmm. Well, so, there is a little bit of—been some give and take there on both sides, but are there some features of international arbitration that you would like to see more widely adopted in U.S. arbitration?

[00:17:31] John Hinchey: Yes, there are, and as a matter of fact, I think they're, you know, becoming—I wouldn't say common—but they're being used more frequently, and I would say the first feature are written witness statements. The normal way, as we all know, for a witness to give testimony is to be subjected to direct and cross-examination by the party's lawyers, whereas the typical manner of giving testimony—and certainly [in] international proceedings—is for the witnesses to give their direct evidence in the form of written sworn witness statements in advance of the hearing, and then they're later cross-examined on the—on the statement at the hearing. The big advantage of the written witness statement, at least in my view, is having the testimony prepared in advance of the hearing, which makes for fewer surprises to the parties, and it allows both the parties and the arbitrators to be better prepared at the hearing.

[00:18:25] There's another feature I think that is becoming more common in the U.S., and that's limited document production. In American arbitration—certainly in civil cases—the parties are often called upon to produce any and all documents that have any relationship to the issues in the case, and that can be extensive, and it's certainly expensive.

[00:18:46] Whereas in international arbitration, there are typically only two rounds of document production. The first being to produce just those documents that you intend to rely on in the arbitration, and the second round being a much more limited production based on very specific document requests that are accompanied by showing that the requested documents are going to be relevant and material.

[00:19:08] Not just to the issues, but to the outcome of the case, which is a much tougher burden of proof and which results in a much more limited production. There is a third feature, which I think should be used more often, and that's a very detailed statement of the issues at the beginning of the case.

[00:19:24] That's required in most international arbitration, certainly ICC arbitration. Every issue that's going to be determined has to be stated upfront in great detail, and that's burdensome. It's sometimes difficult for the parties to come to agreement on what the issues are, but by laying out all the issues in advance in that way, it sets the boundaries of what's going to be relevant material at an earlier stage in the case, and it helps keep the case on track. So, those are three, I think, of the features that have traditionally been used in international arbitration that are now being used more frequently, I think, in American arbitration.

[00:20:01] Moderator: Hmm. Leslie, John highlighted discovery. There is no doubt tension between the desire to keep arbitration efficient and economical and the desire to, you know, make sure that the parties get the information they need through discovery. How do you think about the appropriate role of discovery and arbitration? How do you think it should be managed?

[00:20:24] Leslie King O'Neal: Well, as John mentioned, you know, there's a very different philosophy between the American and English approach and the continental approach, which comes from our, you know, litigation backgrounds. But I think as—falling back on a comment earlier—the fact that there's so much more data now in a project means that the idea of asking for any and all documents related to the project is simply impossible. Because we're talking about terabytes of data, people will be overwhelmed. And so, I think what this means is that the parties and their counsel have to at the beginning of a project, a beginning of a dispute, lay out what are the issues and what is the relevant data, not just documents that is going to be related to that data, and focus their discovery efforts on those specific items. And also, that there needs to be more cooperation, which is sometimes considered a bad word in our adversarial system, but as one of the writers on this topic, Judge Paul Grimm, has said, you know, cooperation is not the same as capitulation. As an advocate, you have a duty to your client to make the process efficient and cost-effective.

[00:21:45] And so, you need to pick your battles and you need to, where appropriate, cooperate with opposing counsel to obtain the necessary documents and not perhaps using discovery as a bludgeon, which it occasionally is in at least civil litigation.

[00:22:03] John Hinchey: Do you agree with that, John?

[00:22:05] Yes, I do. And I would add only that, you know, the most distinctive aspect of arbitration is the party control over the process, or as they term it in international arbitration, party autonomy, and that means that if—if the parties want speed and efficiency, they can agree to that. If they want economy or low cost, they can agree to that as well. But the reality is that speed, efficiency and low cost also come with certain negatives, such as nasty surprises at the hearing or trial and a likely reduction of what we call due process.

[00:22:41] I mean, the old example is one often cited—is the boot maker who advertises, look, I can make your boots either good, fast or cheap. Pick any two. So, the ideal is to strike a balance between efficiency, speed, economy and fair process. That should be done based on the demonstrated needs and desires of the parties.

[00:23:05] Normally, the parties cannot agree on the exact balance, so that's where the arbitrators have to step in and decide based on their good judgment and experience. But it's all a matter of balancing. You know, it's a cost-benefit analysis of balancing speed, efficiency and economy with fairness and a just result.

[00:23:25] Moderator: John, in addition to balancing all those factors on the discovery issue, what—what are other ways neutrals and lawyers, you think, can ensure that construction dispute resolution proceedings remain efficient and fair?

[00:23:42] John Hinchey: Well, I have pretty firm views on that when talking about the role of neutrals and lawyers regarding dispute resolution. I think we need to keep in mind that the parties own the process, and if and to the extent that the parties can agree on what procedures should apply, then I do not believe that the arbitrators and neutrals have the right to come in and ignore or refuse to apply whatever the parties have agreed to.

[00:24:08] And secondly, I think we ought to keep in mind that in most instances, the parties have freely and voluntarily entered into a contract before the disputes developed, which means that both the parties have considered what they agree to be fair. So, in most cases, I think the fair approach for the neutrals is to respect, honor and apply what the parties have agreed, even though it may result in one party having an advantage over the other because of intervening circumstances.

[00:24:36] Now, in saying that, I recognize there's another school of thought, which I personally disagree with, but it is that it's the job of the neutral to apply his or her view of what's fair at the time of the dispute, rather than what the parties initially agreed. I disagree with that more subjective approach because I think it can easily allow the neutral's personal biases to control, and further, it makes it virtually impossible for the parties to anticipate what an arbitrator is going to do when they're negotiating and drafting their contracts.

[00:25:10] So, in short, I suppose I'm more with a camp that believes that the fairest and the just way to decide a dispute is according to, you know, what the parties agreed when there was no dispute.

[00:25:22] Moderator: Leslie, [do] you think the parties should be in control from the beginning as well?

[00:25:25] Leslie King O'Neal: I do. I think the problems arise—and, from what John said is—when, unfortunately, the parties, for whatever reason, don't address these issues in their dispute resolution clauses, which are sometimes called, you know, the 2:00 a.m. clauses, that are drafted when everybody's really tired and wants to get the project or the contract behind them, so they don't give that much thought to designing their dispute resolution process. I think it's in those cases where the neutral is faced with trying to discern what the parties actually wanted and trying to give them what they wanted as best they can, given what they have provided in the way of expression of that desire. And I'm sure John can say this, but, you know, we've seen arbitration clauses that are either extremely long and so complicated that [it] takes a law professor to parse them out or, on the other extreme, so brief that they give no detail at all and leave everyone just sort of wondering what it is exactly that the parties wanted.

[00:26:38] John Hinchey: Well, I think what Leslie—if I could just intervene—I think what Leslie's outlined is very true, and that's why in recent years, and I think for the future, ADR for construction projects is going to be far more flexible than it has been even in the past. One of the shortcomings Leslie mentioned of this—of dispute resolution is that the parties agree on the process before the dispute actually develops.

[00:27:09] So, therefore, the process that they've agreed to may not be the most effective or efficient or the, you know, the best way to resolve the dispute when it develops at a later time when the circumstances have changed. So, one answer to that is what is known as the combined dispute board concept that is actually provided for by the ICC—International Chamber of Commerce—Dispute Board Rules, where, at the beginning of the project, the parties agree to the formation of a combined dispute board, which has the power and authority to adapt the process to a particular problem at the time of the dispute. As an example, the board might have the authority to conduct either mediation or arbitration depending on the nature of the issue and the needs of the parties. We're beginning to see this reflected in dispute resolution now in the form of what's called "mixed-media dispute resolution," where the arbitrators are authorized to essentially conduct settlement negotiations, either as to portions or all of the dispute. So, I think as we move into the future, we're going to see arbitrators with much more authority and much more flexibility to adapt the process and adjust the process as necessary in order to make the process both fairer and more just.

[00:28:31] Moderator: Leslie, do you see more flexibility in the future? And what other kinds of areas of growth do you see in construction? Where's the demand going to be, do you think, for construction ADR?

[00:28:44] Leslie King O'Neal: Well—sort of following on John's comments, which I agree with—I think you're going to see more use of mediation or other processes during the course of a job, trying to resolve disputes early, because the realization is that they don't improve with age, and it's much better to try to get it resolved and get the project back on track than to let the dispute derail the project and the relationship between the parties. So, I think you're going to see more use of things like the dispute review board or a standing neutral or something of that nature, and even just bringing in a mediator to deal with a dispute during the course of a job and not waiting for a lawsuit or an arbitration to be filed. And I think also, you know, that there's going to be more emphasis on trying to avoid disputes and trying to improve cultures and communications to try to do that. As John mentioned, the talents of Bob Moss in seeing areas that—or potential problems and resolving them quickly—I think that can be learned and that those kinds of behaviors will be important in future project managers on construction projects.

[00:30:11] Moderator: Leslie, how can AI be used, or should it be used, in ADR today?

[00:30:21] Leslie King O'Neal: Well, Andrew, that's a very broad question, and the fact is that AI is already being used in ADR in some ways and has been for some time. There are a few companies that have already embraced online dispute resolution. Using AI as the mechanism, for example, for customer complaints or those kinds of disputes. Also, there are AI tools that help lawyers and could perhaps help others in evaluating cases, because what AI does, of course, is to evaluate patterns, and so they look for predictive patterns and they could evaluate how one case is like previous cases. Then, you know, maybe down the road we could actually have algorithmic dispute resolution, where the mediator or the arbitrator was and an artificial intelligence tool. However, I think it's going to be a long time before AI is ready to take over that kind of function completely.

[00:31:31] In the meantime, it's a tool. It can be a tool for arbitrators and mediators to use to help summarize documents and so forth, and perhaps, as I said, in looking at patterns of how cases are decided.

[00:31:45] John Hinchey: And, as a general statement, I would say that private dispute resolution—and that of course includes arbitration and mediation—are currently used because the parties have confidence in the personal experience, the ethical conduct and, of course the good judgment of the neutrals as live human beings.

[00:32:05] And, as I understand artificial intelligence, there are basically two types. The first is sometimes referred to as generative AI, which is, you know, nothing more than the identification, collection, organization and presentation of data or information in a usable format. I mean, a simple example would be, you know, asking a computer to do a summary report of all known, available information about a particular topic. We're all familiar with that. But the second type of AI—it's sometimes referred to as evaluative AI—means that a computer is being asked to take all the information that would be generated—let's say in a AI report—and then evaluate that information and predict what its meaning and significance is.

[00:32:56] Or, in the case of a lawsuit or arbitration, trying to predict what the ultimate decision either should or is likely to be. Now, as to the first type that, you know, Leslie was talking about. I think with adequate and proper disclosure, I think that type of AI would be perfectly appropriate and useful to use in an actual dispute resolution proceeding such as arbitration.

[00:33:19] But I think it might be inappropriate and even unethical for arbitrators to use the more evaluative form of AI to decide a real dispute. So, even though evaluative AI might be inappropriate for arbitrators sitting as judges, I can still see that there might be a predictive use for advocates.

[00:33:43] Let's say that an advocate is advising their client and they're trying to determine what arbitrators might be likely to do within a certain set of facts. If they had the information available—and I'm not sure how they could get it on what previous arbitrators have done with similar sets of facts—then they might be able to use certain algorithms to come up with what likely might be a result for another arbitration. But that's—I think there's a big difference between an advocate making use of that type of evaluative arbitration and arbitrators making use of it to try to decide cases.

[00:34:27] Leslie King O'Neal: I was going to say another thing that we as arbitrators and mediators deal with now is the use of artificial intelligence in creating evidence. All sorts of construction equipment technology now use AI, and [it] not only collects data, but it evaluates and analyzes that data. And so, that itself can be evidence. The problem is that, at the moment, there is no uniform set of standards for how any of this AI is to be used or to operate or anything else. And so, as arbitrators, particularly when faced with evidence, there's a lot of uncertainty as to its authenticity and reliability and so forth. So, there's issues there for arbitrators to have to weigh and to look into how this was created by whom, what systems and—and so forth. So it creates challenges.

[00:35:32] John Hinchey: So, I think what we're coming down to is that AI can very well be used as a tool, as Leslie mentioned, to, you know, collect, organize and report information. But frankly, I have serious doubts as to whether or not AI either should or could play a meaningful role in dispute resolution by replacing human judgment and making decisions.

[00:36:00] Moderator: Leslie, John, I want to thank both of you for a wonderful conversation. I've learned a lot, and I hope our listeners have too. Thank you so much.

[00:36:08] Leslie King O'Neal: Well, it was a pleasure. Always a pleasure to be with John.

[00:36:12] John Hinchey: Well, thank you. The same goes for me, Leslie.

[00:36:15] Moderator: You've been listening to a podcast from JAMS, the world's largest private alternative dispute resolution provider. Our guests have been John Hinchey and Leslie King O'Neal. For more information about JAMS. Please visit www.jamsadr.com. Thank you for listening to this podcast from JAMS.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

[PODCAST] JAMS Neutrals Discuss Evolution Of ADR For Resolving Construction Disputes

United States Litigation, Mediation & Arbitration

Contributor

Founded in 1979, JAMS is the world's largest private provider of alternative dispute resolution (ADR) services. A pioneer in virtual ADR, JAMS has conducted thousands of virtual ADR sessions. Our panel includes over 400 arbitrators and mediators, handling an average of 18,000 cases annually in the US and abroad.
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