Notwithstanding what should be one of


the greatest features of arbitration, it seems that lawyers cannot help themselves. Terefore, each side’s attorney frequently insists on extensive document production, starting with a 20-page Electronically Stored Information (ESI) Protocol and, thereafter, including email custodians’ identification, searching for documents, emails, and texts, and spending thousands of dollars on an e-discovery vendor. (Te jury is still out as to whether artificial intelligence will dramatically reduce the costs of ESI discovery.) Te parties then proceed with depo-


sitions. Because construction is essen- tially a team sport, there are numerous individuals who have knowledge of the project and, hence, presumably need to be questioned to find out what hap- pened. (Although many lawyers use the mantra “if it is not in writing, it did not happen,” they still insist on depositions, just in case.) Although my last paragraph describes


what can be a nightmare of arbitration, more often than not, discovery is kept to a minimum, so the parties receive an efficient, cost-effective, speedy, and knowledgeable resolution of their dispute. One complaint about arbitration is that arbitrators tend to split the baby, since one of their duties is to “do equity.” Tat tendency appears to now be history. Te AAA and JAMS really do bend over


backward to make the arbitration process as fair and expeditious as possible. And going before a jury to litigate a complex construction dispute with numerous technical issues is not the best way to obtain a decision devoid of emotion, one of the hallmarks of jury verdicts.


Mediation Arguably, every matter deserves at least two mediations. Unfortunately, part of the reason for that mantra is that many con-


As arbitrations are private and arbitration awards are confidential, some critics bemoan the fact that the resolution of so many construction disputes no longer creates precedent that parties can rely on to manage the performance of their contracts. However, generally those criticisms are outweighed by the benefits of arbitration.


struction contracts require, as a condition for proceeding forward with litigation or arbitration, that the parties attempt to resolve their dispute first via mediation. Te problem with that condition prec-


edent at that early stage of the dispute is that the parties often do not know enough about their case or, even more so, their opponent’s case, to recognize its strengths and weaknesses, which then facilitate a settlement. Nonetheless, mediation has been, for the last 30 or so years, a terrific way to settle construction disputes before the parties engage in full-fledged discovery, or at least before they need to prepare for trial or an evidentiary hearing. Mediations have definitely changed


in format over the years. Initially, the approach was to have each side give a presentation to the mediator, with the opposing side present. Te benefits of doing so included: (1) the other side could see how bad they looked; (2) the presenting side could see how good or bad their lawyers and possibly experts did; and (3) the mediator could show the parties how much he or she understood their case.


That approach has changed. Pre-


sentations often pushed the parties far- ther apart. Mediators can also arguably understand the dispute based on the mediation statements such that they do not need the dog and pony shows of the initial presentations. In addition, mediators and the attor-


neys are taking advantage of the fact that they may have ex parte communications, allowing the attorneys to speak candidly with the mediator about how to settle the dispute before the official mediation proceeds. We are also seeing that cases in mediation are settling, often after the official mediation hearing, based on the mediator’s follow-up.


Marilyn Klinger


Marilyn Klinger is the Managing Partner of SMTD Law’s Los Angeles office and a nationally recognized construction law leader who now serves as a mediator and arbitrator, leveraging decades of industry experience to resolve complex construction disputes.


CALIFORNIA CONSTRUCTOR MAY/JUNE 2026


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