Janet White is an AAA arbitrator with deep roots in practice for over forty years in the Design & Construction Industry. As a licensed architect in 26 states and the District of Columbia, she has broad experience that encompasses a wide range of contexts that brought her into construction disputes. I have been a principal in three national and global architecture, engineering, and construction firms and in private practice.
Her work has included private, public, civic, and federal projects for commercial and residential new construction, additions, and renovations. She has LEED AP BD+C and NCARB certifications. In combination with practice, she has been a regulator as chair of the Missouri Board for Architects, Engineers & Surveyors Architect Division and as an educator, and I have been on faculty at three universities.
We asked her how her expertise informs her approach on the American Arbitration Association® Construction Panel.
Q. Tell us about your background in construction law, the construction industry, or your time on the bench handling construction-related cases.
With both passion and purpose, I am an AAA arbitrator with deep roots in practice for over forty years in the Design & Construction Industry. As a licensed architect in 26 states and the District of Columbia, I have broad experience that encompasses a wide range of contexts that brought me into construction disputes. I have been a principal in three national and global architecture, engineering, and construction firms and in private practice. My work has included private, public, civic, and federal projects for commercial and residential new construction, additions, and renovations, and I have LEED AP BD+C and NCARB certifications. In combination with practice, I have been a regulator as chair of the Missouri Board for Architects, Engineers & Surveyors Architect Division and as an educator, and I have been on faculty at three universities.
Q. What types of construction disputes do you typically handle as an arbitrator or mediator?
I handle both large and small construction disputes that involve billing and payment issues, construction cost overruns, water infiltration, delay claims, project management, HVAC issues, documentation, errors and omissions, site disputes, in addition to quality of care, construction standards, change orders, manufacturer requirements, warranties, construction codes, FFE installations, subcontractor issues, regulatory issues, and compliance with laws. I have been fortunate to be involved in resolving a spectrum of case magnitudes from very small scale, including Fast Track and pro se to large scale as a sole arbitrator and a panel member.
Q. What drew you to ADR work in the construction space? What do you value most about serving as a neutral on the AAA’s Construction Panel?
Typical of the inherent nature of design & construction being high-risk, capital intensive, and fragmented, much of my work has been engaged in a variety of compound to conventional problems that require support for resolution with regard to responsibility, cost, and compliance with the law. Being an arbitrator is an opportunity for me to officially reciprocate and pay it forward by resolving construction disputes and by helping to educate the industry to avoid those problems. I value the opportunity, especially with recurring problems I have experienced as a practitioner, regulator, and arbitrator.
Q. Are you noticing any emerging issues or trends in construction cases coming to arbitration?
AAA guidance, advancements, and proactive work on responsible AI use with human oversight, including the “AI Arbitrator” and “Dispute Simulator” for documents-only cases, show the emerging trend for AI activity in arbitration and AAA’s foresight for leading this critical area. Electronic document management and using less paper documents are obvious prompts for all to increase computer skills for collecting, organizing, and presenting stored materials.
Additionally, new construction cases initiated at the land procurement and development stages show a trend for early cases in the design and construction process, which is testimony to the increased number of cases that continues to grow.
Q. What advice do you have for parties preparing for arbitration or mediation in complex construction disputes?
I have four recommendations:
- Include well-drafted arbitration clauses in contracts. The clauses are instrumental for establishing how issues will get resolved through arbitration, which is more expeditious, efficient, and cost-saving than traditional litigation. A well-drafted ADR clause also allows parties to take advantage of other arbitration assets, by example, to tailor a case to their needs and to limit hearings, discovery, and motions to reduce costs.
- Remember that design and construction is a process, and it was a breakdown within that process that got the parties to the arbitration. The arbitration proceeding will provide the parties with the structure and experienced panelists needed to address and resolve that breakdown in a legally binding, private, and confidential decision.
- This is arbitration and not court litigation, and parties should be mindful of that. Focus on the issues at hand; the contract; the evidence adduced; and the applicable law, if any. Treating an arbitration proceeding like a trial will only result in the waste of time and expenses
- Where the law was not included in the arbitration clause, evidence is paramount. For the standard of proof, a preponderance of factual and technical-detailed, documented evidence is essential and needs to be organized and presented in a storyline in support of the relief being sought. There are many resources on the AAA portal to take advantage of procedures and guidelines that can help you.