Construction disputes are uniquely complex, combining contractual interpretation with highly technical subject matter. Issues involving scheduling delays, cost escalation, design deficiencies, and scope changes often require decision-makers to evaluate not only legal principles but also the practical realities of how construction projects are executed. In this context, the inclusion of construction industry professionals as arbitrators offers distinct and measurable benefits.
Including a multitude of Industry Professional Arbitrators (IPAs) on their construction roster is an important component that distinguishes the American Arbitration Association®’s (AAA®) construction-industry Alternative Dispute Resolution (ADR) services. With no comparable resource, IPAs convey consequential expertise in the design and construction process for construction dispute cases. Considering most arbitrators are attorneys who are proficient, experienced, and accomplished in the law, IPAs bring additional essential information and intelligence to the crucial evidence requisite to assess and determine final, binding decisions. These IPA assets can be invaluable to deliberations and sound decision-making.
IPAs with discrete industry expertise include those who have extensive mastery in the design and construction process and have been involved in managing conflict and settling disputes. Ideal industry professionals suited for arbitration who are well-versed in the business and industry with venerable experience include: Architects, Engineers, Contractors, Construction Managers, Consultants, and other Industry Practitioners.
Arbitration Non-Attorney Neutrals
It is widely recognized that many attorneys are more familiar with litigation in the judicial court system than with arbitration and often counsel’s arguments turn on the law. However, where the law is not determinative of a construction dispute, it is often the evidence that prevails for decision-making. Non-attorney neutrals are key when technical, industry-specific knowledge is more crucial than legal training.
Technical and factual fluency and procedural discipline are where IPAs can offer valuable information and clear evidence-based specifics to illuminate non-legal matters and provide substantial particulars meaningful to the determination of the case. IPAs’ specialized understanding of complex construction document details and analysis of delay and disruption based on the Critical Path Method (CPM) used in construction projects are examples of their indispensable interdisciplinary technical skills and experience for decision-making. This understanding allows arbitrators to more readily grasp the factual record, identify the relevant issues, and assess competing expert testimony. Rather than relying entirely on adversarial presentations to translate technical concepts, arbitrators with industry experience can engage directly with the underlying issues, producing more informed and precise outcomes.
Large and Small ADR Cases
Regardless of scale for either sole-arbitrator small cases or tribunal-panel large complex cases, parties need arbitrators who understand the details, nuances, and variances in their cases and industries. IPAs have the knowledge base and deep-dives in the trenches that can add to and fill in pivotal information for both the content of the construction and the larger context of the site and relevant auxiliary circumstances.
On large complex cases, IPAs can speak more holistically to the entire case and integrate parts beyond a singular issue. Although expert witnesses can give testimony on specific aspects of a case, IPAs have comprehensive knowledge of the construction make-up and logistics of a dispute. They can not only validate multiple material and assembly parts at issue, but also can further identify their relationship to, by example, CPM critical path tracking, where delivery and installation scheduling often reveals important information for frequent disputes.
Small cases and pro se arbitration cases are also congruent venues for IPAs. The AAA Construction Industry Fast Track Procedures address the need for a reduced scale format, recently affirmed with more time and cost efficiencies in the AAA Construction Industry Arbitration Rules effective March 1, 2024. Highlights -- including increasing the claim amount ceiling for the Fast Track Procedures from $100,000 to $150,000, and limiting motions, discovery, and type of award -- are good examples of how IPAs can be an excellent resource as arbitrators to cover these comparatively compact cases. Many Fast Track cases involve small residential disputes between owner, architect, and contractor, often involving the American Institute of Architects AIA Owner-Architect and AIA Owner-Contractor agreements. In these primarily evidence-based disputes, IPAs inherently bring their design and construction knowledge to resolve these condensed cases fairly and efficiently.
The benefits of industry expertise extend beyond accuracy to efficiency. Arbitrators who are familiar with construction practices are often able to streamline proceedings by narrowing the scope of technical disputes and focusing hearings on the most consequential issues. In many cases, this reduces the need for extensive expert testimony, minimizes time spent clarifying industry concepts, and shortens overall hearing duration. For parties, these efficiencies translate into tangible cost savings. In an environment where construction disputes are frequently high-value and resource-intensive, the ability to resolve matters more efficiently is a significant advantage.
Selection of IPAs
The perceived legitimacy of arbitration outcomes is closely tied to the credibility of the decision-maker. In construction disputes, parties often place substantial value on having their case heard by someone who understands the realities of the industry. The presence of an industry construction professional on a tribunal can enhance confidence that the decision reflects both legal principles and practical experience.
AAA case managers are strategic for assisting in the selection of arbitrators. The case managers can discuss with the parties their required arbitrator credentials, expertise, and specific project type or experience. Cases with both legal issues and construction issues that are more complex would appreciably benefit from having both attorneys and IPAs serve together in mixed tribunal three-member panels. If the parties do not select or agree on an arbitrator, case managers again strategically have the ability to research resumes, list and potentially select arbitrators, both attorneys and IPAs, that fit the criteria of the parties, including location and compensation rates. Intrinsically, rates are a discerning measure for smaller cases.
From the administrative perspective, parties in construction arbitrations are increasingly intentional in selecting arbitrators with industry-specific experience, whether in infrastructure, commercial development, energy projects, or specialized trades. This trend reflects growing recognition that effective dispute resolution depends not only on legal acumen but also on a deep understanding of the underlying work.
Advantages with Benefits
The advantages of arbitration are well-spoken for, as is testimony to the increased number of AAA cases that continues to grow with the embraced support of the AAA’s mentorship program for new AAA arbitrators. Expanding the bandwidth of arbitrators to preside over these cases with IPAs brings a broader base of knowledge, diversity, and presence to AAA services. IPA advocacy for AAA ADR construction services further enhances the efficiency, economy, and flexibility for added cost-savings and is advantageous for more all-inclusive arbitrators and arbitrations.
With significant years of Design & Construction experience, IPAs are a priceless resource for dispute resolution. Professionally, being an arbitrator is an opportunity for them to give back and pay it forward by resolving construction disputes, especially with problems they themselves have dealt with, and helping to educate the industry to avoid those problems.
Janet R. White, FAIA LEED AP is an AAA arbitrator, practitioner, former educator and regulator in Bethesda, Maryland, and the Chair of the AIA|DC Fellows Committee in Washington DC. She is a licensed architect in 26 states and the District of Columbia, and formerly on faculty at Washington University in St. Louis and principal in three national and global architecture, engineering, and construction firms.
¹AAA 2025 Construction Infographic
²General Guidelines for the NCDRC Mentorship Program for new AAA® Construction Arbitrators & Mediators