Adrian L. Bastianelli started as a civil engineer with the U.S. Army Corps of Engineers and attended law school at night after graduating with a BSCE from Purdue. Upon graduating from law school, he clerked with what is now the U.S. Court of Federal Claims in Washington, DC, working mostly on government contract cases.
After the clerkship, he went into private practice preparing, negotiating, and litigating construction claims. In 1978, he started serving as a construction neutral for AAA® as part of my practice.
His neutral work as an arbitrator, mediator, and DRB member transformed into a full-time neutral practice in the last five years. We asked him how his expertise informs his approach on the AAA Construction DARB panel.
Q. What types of construction disputes do you typically handle as an arbitrator, or mediator?
I have handled almost every type of construction dispute imaginable as an arbitrator, mediator, or DRB member, including defective work, additional work, differing site conditions, defective specifications, delay, scheduling, impacts, damages, design errors, and many others. I have arbitrated, mediated, or served as a DRB member on all types of construction projects, including office buildings, condominiums, power plants, stadiums, tunnels, rail projects, highways and bridges, airport facilities, university buildings, marine facilities, houses, solar farms, wind farms, data centers, and many others.
Q. What drew you to ADR work in the construction space? What do you value most about serving as a neutral?
I felt that my personality and temperament fit neutral work and that my engineering background and experience working on claims for the government and subsequently representing contractors, subcontractors, design professionals, and owners made me uniquely qualified as an ADR neutral. Observing litigators and making decisions in my neutral work was a tremendous learning experience for my litigation practice and made me a much better construction lawyer. In addition, helping parties solve their problems as a neutral has been extremely rewarding.
Q. What advice do you have for parties preparing for arbitration or mediation in complex construction disputes?
Preparation, preparation, and preparation. In addition, counsel needs to understand the difference between arbitration and litigation and direct their presentation to an arbitrator, who typically is a seasoned construction professional, as opposed to a jury or even a judge who likely has little knowledge of construction and construction law. In addition, counsel needs to make sure the presentation is delivered in a professional and calm manner and that it is directed at the key issues on which liability turns.
Q. What do you hope to achieve in conflict resolution?
In mediation, I hope to assist the parties in achieving a settlement that is better for both parties than the alternative if they don’t settle. In arbitration, I hope to achieve a well-reasoned award that a party may not agree with but will believe that its arguments were heard and fairly considered by me and that the proceedings were conducted in a fair, reasonable, and impartial manner.
Q. How has your experience with dispute avoidance resolution boards (DARBs) shaped your approach to managing and resolving construction disputes, and what value do you believe these boards bring to the overall dispute resolution process?
My experience with DRBs has confirmed my long-held belief that the goal of contractors and owners is a successful project with few delays, claims, or disputes of any kind. The problem, however, is that there are almost always some unanticipated problems that increase the cost of the project to one party depending on how the disputes are resolved. Under the intense pressures caused by these increased costs, parties sometimes lose sight of their common goals and fail to communicate openly and collaboratively to solve the problems. My DRB practice has helped me focus on real -time collaborative solutions to avoid claims and litigation.
DRBs and DARBs are unique forms of ADR and add to the ADR continuum. The regular meetings at the jobsite between the parties and the Board members to discuss the issues on the project in real time, the contemporaneous observation of the work by the DRB, the informal nature of the meetings and hearing, generally without lawyer participation, and the real-time non-binding recommendations from the DRB who are experts selected by the parties before construction commences help prevent disputes in a way that no other ADR process does.