Construction Arbitrator Selection: a/k/a “I Have an Arbitration Provision in My Construction Contract—Now What Do I Do?”

LexisNexis Practical Guidance®

This practice note discusses strategies for selecting an arbitrator for a construction dispute. Arbitrator selection for a construction dispute, whether for a panel or as a single arbitrator, is a critical decision with a seemingly infinitesimal number of considerations and possible approaches. Nevertheless, this process can and should be approached with a reasoned, well-considered plan. This practice note offers practical advice for developing this plan. It addresses the pros and cons of selecting different types of arbitrators and offers strategies for the final selection process.

For additional information on the use arbitration in construction disputes, see Arbitration of Construction Disputes under the Rules of American Arbitration Association and Arbitration of Construction Disputes under JAMS.

Setting the Scene

So you have either negotiated strenuously with your counterpart or adversary to include an arbitration provision in your construction contract or that of your client's, or you have picked up a form contract that as a matter of course and default selects arbitration as the universal method of dispute resolution and, perhaps, even goes so far as selecting the American Arbitration Association (AAA) as the entity who will administer and provide structure to your arbitration, if dispute resolution is needed on the contract. Alternatively, you may have focused on the arbitration clause to even a higher degree, selecting not only the structure of the arbitration panel, but also the discovery permitted, the discretion of the arbitrator(s), and even whether there will be some method of appeal of the decision (which could be construed by many arbitration purists to be the antithesis of the whole purpose of arbitration, a final and conclusive resolution to the dispute(s) at issue).

Regardless of the circumstances, when the time and need for arbitration arises, the question remains, who will be the arbitrator(s) charged with the fate of my dispute, my client, my company, and/or my project? As much as any of the facts and the law at issue in the matter, this decision is a critical one, but it has considerable variables, many of which will be addressed here, but due to almost an infinitesimal number of combinations and alternatives, cannot be exhaustively explored here or in any writing that is short of a treatise volume.

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“Construction Arbitrator Selection: a/k/a ‘I Have an Arbitration Provision in My Construction Contract—Now What Do I Do?’,” by Edward Gentilcore was published as a LexisNexis Practical Guidance® Practice Note in September 2022. Reprinted with permission.