Deborah Mastin has been a construction lawyer for 50 years. After studying architecture at MIT and graduating from Northeastern Law School, she litigated construction defect claims at a boutique law firm in South Florida before joining the Miami-Dade County Attorney’s office, where I spent 34 years as the lead attorney assigned to support the County staff implementing the design, procurement, construction, and dispute resolution of County infrastructure projects. We asked her how her expertise informs her approach on the AAA Construction DARB panel.
Q. What types of construction disputes do you typically handle as an arbitrator or mediator?
I typically handle complex, long-term projects with multiple parties and a variety of intermingling disputes, including defective construction work, defective design elements, delayed performance, failure of the owner to acknowledge additional out-of-scope work, and failure of sureties to provide coverage.
Q. What drew you to ADR to work in the construction space? What do you value most about serving as a neutral?
I have been a member of the AAA panel of neutrals since the early 1990s, with the express permission of the County, as my “authorized outside employment.” I take great satisfaction in making the world more peaceful, one dispute at a time.
Q. What advice do you have for parties preparing for arbitration or mediation in complex disputes?
ADR is an alternative dispute resolution process and is not litigation in a different forum. In both mediation and arbitration, collegiality among opposing counsel is helpful. My primary advice for obtaining resolution of disputes in mediation is: (i) surprises don’t lead to settlements; and (ii) mediation is a form of business transaction; people generally prefer to do business with people they like and trust. In an arbitration, my advice is to focus on communicating the critical facts and issues of the dispute to the arbitrators and not get sidetracked in procedural quarrels.
Q. What do you hope to achieve in conflict resolution?
In mediation - a client-directed resolution that best meets the current business needs of the parties under adverse circumstances. In arbitration, I hope to achieve a fair, efficient, and transparent process for imposing a resolution on opposing parties that settle their disputes. In a DARB, I hope to help the parties find a mutually acceptable outcome, typically to jointly address unforeseen events that adversely impacted a project.
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 first DARB experience was awful—the dispute process began midway through construction and became a series of mini arbitrations; ultimately, the parties agreed to terminate the DARB and to utilize a mediator as a project neutral. My second DARB experience occurred in the direction of my client (against my advice): that project was the completion of contract of the North Terminal at Miami International Airport after the developer-tenant and its contractor were terminated by the County. This was a brutal project in an ongoing airport; it was dark for almost 18 months while the County reprocured a construction manager; there were no as-builts for existing, abandoned work; there were hazardous environmental conditions left unremediated; ongoing airport operations had to be maintained; and there were powerful stakeholders (airlines and vendors) who were not formally part of the project team. As a result of the involvement of the DARB, the project finished with no claims, no mediation, no litigation, no arbitration. Change orders were negotiated and implemented without legal intervention and without any challenges. That project made me a believer, and I have seen similar results many, many times since then. The opportunity to resolve disputes early and timely, before resources are committed to a unilateral response, is a gift to the project team that should not be squandered. I have served as a past president of the Dispute Resolution Board Foundation Region 1 (USA and Canada) and served as co-chair of the task force that drafted the operating rules of Dispute Prevention and Management Boards for the International Institute for Conflict Prevention and Resolution. I also co-chaired the task force that drafted the DARB provisions of the ConsensusDocs family of documents. DARBs work magnificently when they are allowed to get involved early and to stay involved on an ongoing basis.