Robert Pearmen's practice, for the last 29 years, has been focused on Construction Litigation. Having no prior background in construction, the process of learning how projects are developed, designed, and constructed has been an enjoyable journey. While disputes are common in the industry, most can and are resolved at the project level or through mediation.
When arbitration is required, the process of preparing witnesses and telling a compelling story grounded in the facts established by the project record, the contract terms, and the applicable law has been a rewarding experience. We asked him how his expertise informs his approach on the American Arbitration Association® Construction Panel.
Q. What types of construction disputes do you typically handle as an arbitrator or mediator?
Delay, Impact, Differing Site Conditions, and Change Order disputes represent the types of disputes that I typically encounter as arbitrator or mediator.
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?
The ability to serve as a neutral arbitrator or mediator on the AAA’s Construction Panel provides an opportunity for me to give back to the industry. As disputes are a recurring part of the construction industry, access to knowledgeable, practical, and fair-minded neutrals is essential to allowing parties to economically resolve the inevitable disputes with trust that what are often complicated issues will be understood and resolved based upon full knowledge of the facts and fair application of the contract terms and applicable law.
Are you noticing any emerging issues or trends in construction cases coming to arbitration?
An ongoing and challenging trend in construction arbitration remains the management of ESI (electronically stored information). While discovery of ESI is essential to allowing all sides the opportunity to present and defend their respective positions, setting boundaries and reasonable limits to help control costs requires a balancing act between the promised efficiency of arbitration and the establishment of proportionate guardrails for discovery.
Q. What advice do you have for parties preparing for arbitration or mediation in complex construction disputes?
The best advice for parties preparing for mediation and arbitration is to focus on what the project record actually shows and reasonably supports. Separating fact from the inevitable emotion tied with what are often significant sums at issue allows for a clearer picture of one’s risks when participating in mediation and more supportable and credible positions at arbitration.