Ernest C. Brown has spent more than 35 years resolving construction disputes. He has successfully resolved more than 3,000 complex construction and real estate disputes and served as 2024 President of the Construction Lawyers Society of America. He has been a member of the AAA National Construction Panel since 1983.
He is available to serve as mediator, arbitrator, special master, and project neutral nationwide to achieve early resolution of complex real estate, construction, and personal injury disputes. 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 a variety of construction projects, from the Oroville Dam Project and Caltrain Electrification to the renovation and expansion of the Honda Center. I have worked in a variety of roles in these and other projects, including acting as a project neutral advisor on construction claims and technical requirements and as part of a project’s DRB Board.
Q. What drew you to ADR work in the construction space? What do you value most about serving as a neutral?
I have always had a transactional, deal-making orientation. A trial is a failed negotiation. There is nothing better in practicing law than resolving a complex case in one or two days of hard work and saving the parties millions in attorney's fees.
Q. What advice do you have for parties preparing for arbitration or mediation in complex disputes?
I have a personal checklist I use for construction and real estate-oriented mediation. However, this checklist is generalized for these types of disputes. Careful thought by the parties and their counsel will result in supplementing or trimming the checklist items for individual cases. An experienced legal counsel will assist their clients in ensuring they are fully ready for an effective mediation experience and full and final case resolution.
Q. What do you hope to achieve in conflict resolution?
First, do not make the situation worse. Second, do not disclose information the parties wish to keep confidential from each other. Third, keep the door open, avoid “Last and Final Offer,” and try not to use the mediator’s proposal unless asked by the parties and largely as a last resort.
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?
I have served on about 15 Dispute Review Boards as administered by Caltrans and other public agencies in California. It has enlightened me to the dramatic effect that setting up a positive tone, focusing on the safety of employees of all participants, and promoting the project mission can have on greatly minimizing the number and extent of project disputes.