the dynamics of multi-party mediation for large, complex

Copyright 2014 American Arbitration Association

The Dynamics of Multi-Party Mediation for Large, Complex Construction Disputes

October 14, 2014 – 1:00 p.m. to 2:30 p.m. ET

PROGRAM SUMMARY

Speakers: Albert Bates, Jr., Esq. and L. Tyrone Holt, Esq. Special disputes—certainly those with a high level of technical complexity as to claims, issues, or defenses--require special mediations…and special mediators. Many construction disputes fall into this category and may appear too complex and involve too many people to successfully mediate. Frequently, however, the key to successful mediation of a large, complex, multi-party construction case is effective and expert preparation. During this 90-minute webinar, expert faculty will share how you can effectively prepare for complex, multi-party mediations,

AGENDA 1:00 p.m. Welcome and Introduction of Speakers (5 minutes) 1:05 p.m. Defining a “Large and Complex” Dispute (75 minutes) Who comprises the team and who “owns” the dispute? Hypothetical Fact Pattern Problem and Issue Identification Mediator Selection Process Preparation for the Mediation The Mediation Conference

2:20 p.m. Conclusion and Questions (10 minutes) 2:30 p.m. Evaluation (5 minutes) 2:35 p.m. Adjourn

ALBERT BATES, JR. PartnerDuane Morris LLP 600 Grant Street, Suite 5010 Pittsburgh, PA 15219-2802 USA

Phone: +1 412 497 1053 Fax: +1 412 202 2389 Email: [email protected]

Albert Bates, Jr. is the Chairman of the Duane Morris Construction Group. While Mr. Bates focuses his practice on the resolution of domestic US and international construction claims, he also advises clients on project planning and execution strategies, project management and project controls strategies, and change management on large construction projects. He has significant experience with megaprojects, EPC projects, and alternative project delivery systems, particularly in power generation, infrastructure, and heavy industrial process facilities. He has acted as counsel on supercritical coal, combined cycle, single cycle, biomass, and hydroelectric power generation projects, chemical plants, pharmaceutical plants, steel mills, coke and coal by-product plants, mass transit and highway projects, airports, mixed-use facilities, and sports and entertainment venues. He has represented multinational corporations, domestic and international owners, EPC contractors, general contractors, subcontractors, engineers, equipment manufacturers and lending institutions in construction, contractual, and other business disputes.

His honors include election as a Fellow in the American College of Construction Lawyers, consistent recognition by The Best Lawyers in America in the areas of Arbitration, Mediation, Construction Law and Litigation--Construction, and consistent recognition as a Pennsylvania Super Lawyer by Philadelphia Magazine in the field of construction litigation. Inaddition, Mr. Bates was selected as Best Lawyers' 2010 Pittsburgh Construction Lawyer of the Year, and was named one of Pittsburgh's "Top 50" Attorneys for 2013 by Philadelphia Magazine.

Mr. Bates also regularly serves as an arbitrator and mediator on domestic and international construction, commercial, and environmental disputes. He is a Fellow in the College of Commercial Arbitrators, and a Certified Mediator by the International Mediation Institute. He serves as a neutral for the American Arbitration Association, the International Centre for Dispute Resolution, and the CPR Institute, and on a non-administered basis. He has served as a neutral on more than 150 occasions, including multiple matters in which the amount in controversy exceeded $100 million USD.

Mr. Bates serves as a member of the Board of Directors of the American Arbitration Association/International Centre for Dispute Resolution. He also served as the immediate past Chairman of the AAA's National Construction Dispute Resolution Committee, a group of representatives from more than thirty prominent constructions industry professional organizations that advise and consult with the American Arbitration Association on conflict management and dispute resolution practices, processes and procedures for the construction industry.

Mr. Bates is a 1987 graduate of Vanderbilt University School of Law, where he was an associate editor of the Vanderbilt Journal of Transnational Law, a 1987 graduate of Vanderbilt University, Owen Graduate School of Management (M.B.A., Finance), and a 1983 graduate of Washington & Jefferson College (B.A., Economics and Political Science, cum laude).

Representative Matters

Construction Projects

Oil Pipeline Project - Counsel to Bechtel, the Program Manager (engineering management, procurement and construction management) for TransCanada, on matters related to the Keystone Pipeline Project.

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Page 1 of 7Duane Morris LLP - Albert Bates, Jr., Partner - Profile

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Power Generation: Hydroelectric - Capital Projects - Construction counsel to Oglethorpe Power in connection with certain capital projects at its Rocky Mountain Hydroelectric Plant.

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Power Generation: Biomass and Combined Cycle - Capital Projects: Construction counsel to Oglethorpe Power in connection with a multibillion-dollar procurement and construction program for a series of biomass and gas-fired power generating facilities.

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Power Project: Supercritical Coal - Prudency Counsel - Prudency counsel to Kansas City Power & Light with respect to a series of rate cases in Kansas and Missouri arising from the construction of Iatan 2, an 850-megawatt supercritical coal-fire power-generating facility in Iatan, Missouri.

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Power Project: Supercritical Coal - Arbitration and litigation counsel to Aker Kvaerner Songer, Inc., in a series of cases arising from engineering, procurement and construction of Council Bluffs Energy Center Unit 4, a 790-megawatt supercritical coal-fired electric generating facility in Council Bluffs, Iowa.

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Power Project: Combined Cycle - Litigation counsel to Aker Kvaerner Songer, Inc., in a series of disputes arising from the engineering, procurement and construction of a 310-megawatt combined-cycle power plant in Burbank, California.

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Power Project: Combined Cycle - Litigation counsel to Aker Kvaerner Songer, Inc. in two cases arising from the construction of the 580-megawatt combined-cycle Ontelaunee Energy Center near Reading, Pennsylvania.

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Power Project: Nuclear Remediation - Represented Southern California Edison in defense of claims by its demolition contractor on certain demolition and disposal work at a decommissioned nuclear power facility in California.

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Steel Mill: Greenfield Construction - Represented Mannesmann Demag, the EPC contractor for the construction of a greenfield steel plant in Davenport, Iowa, against nearly $300 million in claims asserted by IPSCO Steel, Inc.

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Air Separation Plant - Represented Kvaerner Industrial Constructors, Inc. in arbitration proceedings arising from the construction of an air separation plant in Freeport, Texas.

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Assel Mill: Bankruptcy Matter - Represented SMS Demag, Inc. and SMS Meer GMBH in two related cases arising from the supply and installation of an assel and stretch-reducing mill in Rosenberg, Texas.

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Sinter Plant: AQCS Project - Represented United States Steel Corp. in a breach of contract, breach of warranty and engineering negligence action involving deficiencies in the design and construction of a sinter plant emissions-control system at its Gary Works.

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Steel Mill Dismantling - Represented a dismantling contractor in a $70 million loss-of-productivity and lost-profits claim arising from the owner's alleged actions and/or inactions on 10 large dismantling projects throughout the eastern United States.

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Pharmaceutical Plant: Greenfield Construction - Represented PPG Industries in a series of arbitration proceedings related to the engineering, procurement and construction of a pharmaceutical intermediate plant in LaPorte, Texas.

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Norwegian Naval Vessels - Counsel to the controls, packaging and ancillary-functions subcontractor in a delay, disruption and inefficiency claim against Pratt Whitney for the propulsion systems for Skjold Class Missile Fast Patrol Boats for the Norwegian Navy.

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Universal Studios Florida: CitiWalk Project - Represented Baker Mellon Stuart Construction Inc., the general contractor, in a series of related cases in federal and state court in Florida arising from the construction of the Universal Studios Florida "CitiWalk" project.

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Pennsylvania Capital Addition - Represented the Commonwealth of Pennsylvania in a series of disputes arising from the construction of a $125 million addition to the State Capitol Building.

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Mixed-Use Complex: Greenfield Construction - Represented an architectural joint venture and its consulting engineers in a multimillion-dollar loss of productivity and additional services claim against the owner/developer of a convention center hotel, office and retail complex in Pittsburgh.

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Highway and Bridge Project - Prosecution of claim for engineering additional fees for Michael Baker Jr., Inc., and defense of breach of contract and engineering negligence action by PennDOT relating to the Market Street Bridge in Williamsport, Pennsylvania.

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Subway Tunnel - Represented the Port Authority of Allegheny County in a multimillion-dollar delay, impact and differing-site-condition claim by the general contractor and its tunneling subcontractor on the Mt. Lebanon Tunnel for the Light Rail Transit System.

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Public Transit Authority - Represented the Port Authority of Allegheny County in a number of construction and commercial arbitration matters administered by the American Arbitration Association. Examples include bid protests, delay, impact, differing site conditions, loss of productivity, extra work and inefficiency claims, error-and-omission claims, design-deficiency claims, and a variety of other types of disputes.

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Commercial, Environmental and Other Business Disputes

Supply Contract - Representation of a large U.S. producer of alumina in a breach of contract action against a United Arab Emirates metals trading company and its Indian parent for refusing to accept delivery of contracted quantities of alumina.

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Asset Sale - Representation of Beazer East, Inc. in litigation involving the indemnification obligations of the parties for certain environmental remediation costs pursuant to a 1974 asset-purchase agreement.

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Asset Sale - Representation of Beazer East, Inc., in an arbitration arising from the leveraged buyout of the Commercial Roofing Division of Koppers Company, Inc. This arbitration involved whether the purchaser had agreed to assume and indemnify the seller against certain commercial roofing warranty and product liability claims.

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Asset Sale - Representation of Beazer East, Inc. in litigation involving the indemnification obligations of the parties for certain environmental remediation costs pursuant to a 1978 asset-purchase agreement.

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Asset Sale - Representation of Baker Heavy & Highway and its parent, Michael Baker, Inc. in a breach of contract, breach of warranty and indemnification action arising from the sale of certain assets of Baker Heavy & Highway, Inc.

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Asset Sale - Defense of potential purchaser of a collection of businesses involved in the manufacture, sale, service and maintenance of sport fishing vessels in North Carolina.

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Environmental Cost Recovery - Representation of Beazer East, Inc., a former owner of a coke and coal chemical by-product recovery and refining plant, in a lengthy CERCLA cost-recovery action involving the Woodward Coke plant in Birmingham, Alabama.

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Environmental Cost Recovery - Representation of Beazer East, Inc., a former owner of a coke and chemical by-product recovery and refining plant, in a lengthy CERCLA and RCRA cost-recovery action involving the Toledo Coke plant in Toledo, Ohio.

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Environmental Cost Recovery - Representation of Beazer East, Inc., a former owner of a number coal chemical by-product recovery, refining, and disposal facilities, in a number of mediations and other alternative dispute resolution procedures involving the allocation of responsibility among various potentially responsible parties for environmental remediation and removal costs.

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Insurance Coverage - Representation of North River Insurance Co. in a $20 million insurance coverage matter involving whether current owner had any interest in, or is otherwise afforded coverage by, umbrella and excess-umbrella policy issues to former owner prior to the divestiture of certain business units when former owner remained in business and sought to apply coverage to other potential losses.

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Insurance Coverage - Representation of general contractor in an insurance coverage dispute arising under a "wrap-up" insurance policy as a result of the failure of structural members during the construction of the Greater Pittsburgh International Airport.

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Bankruptcy Matter - Representation of the Official Committee of Unsecured Creditors in connection with the investigation and assessment of the validity and avoidability of certain security interests of the secured lenders, and assessment of potential claims against the directors and officers of the debtor, in the chapter 11 reorganization of Birch Telecom, Inc.

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Bankruptcy Matter - Representation of PNC Bank, the secured lender, in adversary proceedings to recover for deterioration of cash collateral as a result of the alleged failure of Visteon Corp. and Delphi Automotive Systems, LLC, to adequately provide post-petition debtor-in-possession financing to a tier-2 automotive supplier.

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Trade Secrets - Representation of Danieli Corp. and Danieli & C. SpA in a case involving the procurement and construction of two cut-to-length sheet-steel lines for a Swedish steel manufacturer. Plaintiff was a disappointed bidder that alleged, among other things, that the Danieli entities misappropriated their trade secrets during the bidding process.

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Areas of Practice

Arbitration and Mediation•Construction Litigation•Commercial Litigation•International Arbitration and Dispute Resolution•Environmental Litigation•

Admissions

Pennsylvania•District of Columbia•U.S. Court of Appeals for the Third Circuit•U.S. Court of Appeals for the Fifth Circuit•U.S. Court of Appeals for the Sixth Circuit•U.S. Court of Appeals for the Eighth Circuit•U.S. Court of Appeals for the Eleventh Circuit•U.S. Court of Appeals for the District of Columbia Circuit•U.S. Court of Federal Claims•U.S. District Court for the Western District of Pennsylvania•



Supreme Court of the United States•

Education

Vanderbilt University, Owen Graduate School of Management, M.B.A., Finance, 1987 - Beta Gamma Sigma

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Vanderbilt University Law School, J.D., 1987 - Associate Editor, Vanderbilt Journal of Transnational Law

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Washington & Jefferson College, B.A., cum laude, Economics and Political Science, 1983 - James C. McGregor Scholar in Political Science

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Experience

Duane Morris LLP - Partner, 2007-present

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Reed Smith LLP - Partner, 2000-2007

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Babst Calland Clements & Zomnir, P.C. - Associate, 1993-1994 - Shareholder, 1995-2000

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Eckert Seaman Cherin & Mellott, LLC - Associate, 1987-1993

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Professional Activities

Fellow of the American College of Construction Lawyers, 2012-present•Fellow of the College of Commercial Arbitrators, 2009-present•Certified Mediator by the International Mediation Institute•Charter Member, National Academy of Distinguished Neutrals•American Arbitration Association/International Centre for Dispute Resolution - Member, Board of Directors - Immediate Past Chair, National Construction Dispute Resolution Committee - Panel of Master Construction Arbitrators - ICDR International Arbitrator - Construction and Commercial Arbitrator and Mediator - AAA Arbitration Advocacy Trainer - AAA Arbitration Ethics and Disclosure Trainer - Program Faculty at various AAA and ICDR national and regional programs

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CPR Institute for Dispute Resolution - International Arbitrator and Mediator - Construction Arbitrator - CPR Construction Advisory Committee - Former member of CPR International Arbitration Committee - Former member of CPR Arbitration Rules Revision Committee

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International Bar Association - Arbitration Committee - International Construction Projects Committee

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American Bar Association - ABA Construction Litigation Committee Delegate to National Construction Dispute Resolution Committee - Forum on the Construction Industry - Litigation Section, Committee on Construction Litigation

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Allegheny County Bar Association - Chair, Construction Law Section, 2010-2011 - Member, Construction Law and Civil Litigation Sections

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Fellow, Allegheny County Bar Foundation•

Honors and Awards

Listed in International Who's Who of Business Lawyers, 2015•Listed in International Who's Who of Construction Lawyers, 2013-2014•Listed in Pennsylvania Super Lawyers' "Top 50—Pittsburgh," 2013•The Best Lawyers in America- Arbitration, Construction Law, Litigation- Construction and Mediation, 2007-present

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Selected as Best Lawyers' 2010 Pittsburgh Construction Lawyer of the Year•Pennsylvania Super Lawyers, 2004-present - Construction Law•AV® Preeminent™ Peer Review Rated by Martindale-Hubbell•

Selected Publications

Chapter Co-Author, "ADR Providers," Construction ADR, ABA Forum on the Construction Industry, January 2014•"Proactive Project Management: Documentation and Control Suggestions for Megaprojects," Construction Law International (January 2013)

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"Controlling Time and Cost in Arbitration: Actively Managing the Process and 'Right-Sizing' Discovery," Dispute Resolution Journal (August-October 2012)

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Chapter Author, "Strategic Considerations in North American Gigaprojects: Common Project Delivery Systems and the Risks and Rewards of the EPC Consortium," Managing Gigaprojects, Advice from Those Who've Been There, Done That, The American Society of Civil Engineers (2012)

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Chapter Author, "Proactive Project Management: Integrating the Contract Documents With the Owner’s Project Controls Processes," Building Better Construction Contracts, Practicing Law Institute Real Estate Law and Practice Course Handbook Series (2012)

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"Audit Provisions in PrivateConstruction Contracts: Which CostsAre Subject to Audit, Who Bears theExpense of the Audit, and Who Has theBurden of Proof on Audit Claims?" Journal of the American College of Construction Lawyers (Summer 2012)

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Chapter Auhtor, International Civil Procedure, Second Edition, Chapter Author ("United States" Chapter), (Juris Publishing 2011)

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Co-author, "Large, Complex Construction Disputes: Dynamics of Multi-Party Mediation," Journal of Legal Affairs & Dispute Resolution in Engineering and Construction,ASCE (May 2011)

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Featured in "Choosing Arbitration over Litigation" by Ann Belser, Pittsburgh Post-Gazette, (February 28, 2011)•Co-author, "Large, Complex Construction Disputes: The Dynamics of Multi-Party Mediation," American Arbitration Association Handbook on Construction Arbitration and ADR, Second Edition (Chapter Author) (2010)

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Co-author, "Large, Complex Construction Disputes: The Dynamics of Multi-Party Mediation," American Arbitration Association Handbook on Mediation, Second Edition (Chapter Author) (2010)

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2008 Update to "Non-signatories and International Arbitration: Understanding the Paradox," presented at CILS 5th Biennial Symposium on International Arbitration, Salzburg, Austria (June 2008)

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Chapter Author, "Arbitrator Disclosure Obligations Under 2004 IBA Guidelines on Conflicts of Interest," International Arbitration and Mediation - From the Professionals Perspective (Alibekova & Carrow, Eds. ) (Yorkhill Law Publishing 2007).

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"Large, Complex Construction Disputes: The Dynamics of Multi-Party Mediation," 62 Dispute Resolution Journal 36 (American Arbitration Association May/July 2007).

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Chapter Author, "The Benefits of a Proactive Approach," Inside the Minds: Construction Law Settlements and Negotiation (Aspatore Books 2007) (Chapter Author).

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Chapter Author, "Non-Signatories and International Arbitration: Understanding the Paradox," Comparative Law Yearbook of International Business (Kluwer Law International 2007) (Chapter Author).

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"Still the Arbitrator's Call: U.S. Supreme Court Rules that Arbitrators, Not Courts, Should Decide the Validity of an Allegedly Void or 'Illegal' Contract," IBA Arbitration Newsletter (September 2006).

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"U.S. Supreme Court Rules that Arbitrators, Not Courts, Should Decide the Validity of an Allegedly Void or 'Illegal' Contract," PBA Civil Litigation Update (Spring 2006).

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"Non-Party Discovery in Commercial Arbitration: Legal Hurdles and Practical Suggestions," Pennsylvania Bar Association Civil Litigation Section Newsletter (Fall 2005)

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"Arbitration in a Global Economy: Managing Information Exchange to Expedite International Commercial Arbitration Hearings," Yorkhill Law Publishing (2005)

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Co-author, "Asset Purchases, Successor Liability, and Insurance Coverage: Does the Tail Always Follow the Dog?" West Virginia Law Review (1998)

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"Natural Resource Damage and Third-Party Personal Injury and Property Damage Claims: Litigation Issues Which Linger After a Successful Brownfields Project," American Bar Association Toxic Tort and Environmental Litigation Newsletter (August 1998)

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"RCRA's Imminent Hazard Citizen Suit Provision After the Ninth Circuit's Ruling in 'Meghrig,'" BNA Toxic Law Reporter (June 21, 1995)

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"An Overview of the Integration of RCRA's Imminent Hazard Citizen Suit Provision with CERCLA's Cost Recovery Provisions After KFC Western v. Meghrig," BNA Environmental Reporter (April 28, 1995)

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Selected Speaking Engagements

Faculty, "Oil & Gas" and "Power," 2014 Deloitte Energy Conference, National Harbor, May 14, 2014•



Faculty, Managing the Cost of Exchanging Electronically Stored Information ("ESI") in Construction Arbitration, American Arbitration Association, December 10, 2013

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Faculty, International Construction and Infrastructure Projects: The Latest Conflict-Management Options, International Centre for Dispute Resolution, Sao Paulo, Brazil, November 13, 2013

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Faculty, Arbitration Update 2013: A Topical Approach to Recent Developments and Trends, College of Commercial Arbitrators Annual Meeting, Santa Ana Pueblo, New Mexico, October 18, 2013

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Faculty, Project Delivery System: A Critical Consideration on Large Construction Projects, International Bar Association Annual Meeting, Boston, October 9, 2013

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Faculty, Audit Provisions in Private Construction Contracts, American College of Construction Lawyers Annual Meeting, Miami, February 23, 2013

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Faculty, The Outlook for Construction in the Power Industry over the Next Decade, Construction SuperConference, San Francisco, December 14, 2012

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Faculty, Building Better Construction Contracts 2012, Practicing Law Institute, New York City, September 18, 2012

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Faculty Member, ABA Construction Forum Inaugural Trial Academy, U.S. District Courthouse, Washington, DC, June 27- 30, 2012

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Faculty, "Optimizing Your Client's Construction Arbitration Hearing," American Arbitration Association 2012 National Constriction Conference, New York City, May 31-June 1, 2012

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Panel Chair, "Mediation – An Important Tool in Resolving International Commercial Disputes," CILS 7th Biennial Symposium on International Arbitration and Dispute Resolution, Salzburg, Austria, May 24-26, 2012

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Faculty, "Building the Construction Arbitration Process to Optimize its Advantages," American Arbitration Association University Neutrals Conference, Scottsdale, Arizona, March 5-8, 2012

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Panelist, "Building the Construction Arbitration Process to Optimize Its Advantages," Construction SuperConference 2011, San Francisco, December 16, 2011

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"Large, Complex Construction Disputes: The Dynamics of Multi Party Mediation," American Arbitration Association University Webinar, December 8, 2011

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"Maximizing Efficiency and Economy in Arbitration: Challenges at the Preliminary Hearing," American Arbitration Association University Arbitrator Training, Pittsburgh, October 13, 2011

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"Making the Multi-Party Mediation Work," Spring 2011 American Arbitration Association Construction Conference, Santa Monica, California, April 1, 2011

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"Construction Dispute Resolution in the U.S.: International Techniques That can be Used Domestically," American Arbitration Association University Webinar, May 10, 2010

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"ICDR/AAA International Construction ADR Tools and Techniques," 8th Annual Miami International Arbitration Conference: Resolving International Construction Disputes, Miami, March 22, 2010

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"Significant Recent Developments in Construction: Law, Ethics, and Practice," Allegheny County Bar Association Construction Law Section, Pittsburgh, December 7, 2009

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"Ethical Considerations for Advocates in Construction Arbitration," AAA 2009 Fall Construction Conference, Los Angeles, November 13, 2009

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"Managing the Expectations of the Parties: Best Practices in Arbitration," American Arbitration Association, Pittsburgh, October 13, 2009

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"Ethical Considerations for Advocates in Construction Arbitration," AAA 2009 Spring Construction Conference, New York City, May 29, 2009

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"Large, Complex Construction Disputes: The Dynamics of Multi-Member Mediation Teams," 2009 AAA/ICDR Neutrals Conference, San Diego, February 27-28, 2009

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"Are You Ready for International Arbitration? How to Prepare and Present Construction Disputes Before the ICC, LCIA, ICDR and other International Forums," 2008 Construction SuperConference, San Francisco, December 11, 2008

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"ADR Works," American Arbitration Association 2008 Construction Conference, Chicago, November 6, 2008•"Non-signatories and International Arbitration: Understanding the Paradox," CILS 5th Biennial Symposium on International Arbitration, Salzburg, Austria, June 19-22, 2008

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"ADR Works: Choosing the Right Resolution Option," 2008 American Arbitration Association Construction Conference, New York City, May 29, 2008

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"What You Can't Not Know," The AAA Construction Mediation Conference, Marina del Rey, California, November 9, 2007

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"AAA Arbitration Roadmap: The Standard for Efficient and Cost-Effective Arbitration," American Arbitration Association, Pittsburgh, September 20, 2007

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"Large, Complex Construction Disputes: The Dynamics of Multi-Member Mediation Teams," American Arbitration Association Construction Mediation Conference, Miami, March 30, 2007

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"Developments in International Arbitration in Europe," International Centre for Dispute Resolution, Philadelphia, December 6, 2006

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Duane Morris LLP & Affiliates. © 1998-2014 Duane Morris LLP. Duane Morris is registered service mark of Duane Morris LLP.

"Best Practices in Construction Arbitration," Allegheny County Bar Association, Pittsburgh, December 1, 2006•"Making the Multi-Party Mediation Work," Spring 2011 American Arbitration Association Construction Conference, Santa Monica, California, April 1, 2011

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"Maximizing Efficiency and Economy in Arbitration: Challenges at the Preliminary Hearing," American Arbitration Association University Arbitrator Training, Pittsburgh, October 13, 2011

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"Enforcement of International Arbitration Awards," International Centre for Dispute Resolution, Washington, D.C., November 15, 2006

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Speaker, "Large, Complex Construction Disputes: The Dynamics of Multi Party Mediation," American Arbitration Association University Webinar, December 8, 2011

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"Arbitration Duties of Disclosure: US, UK, and Continental European Practices," CILS Fourth Biennial Conference on International Arbitration, Salzburg, Austria, June 14-18, 2006

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"A Dialogue with the Leading Arbitral Institutions," Showcase Program, ABA Section of International Law, New York City, April 6, 2006

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"Effective Presentation of Delay Claims to Construction Arbitrators," ABA Section of Litigation Joint Meeting, Alternative Dispute Resolution and Construction Litigation Committees, Las Vegas, November 10, 2005

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"Update on Construction Arbitration Developments," Pennsylvania Bar Institute, Pittsburgh, November 1, 2005•"Advanced Issues in Construction Arbitration," 2005 Neutrals Conference, American Arbitration Association, Philadelphia, September 16-17, 2005

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"Topical Issues in International Arbitration," 2005 International Centre for Dispute Resolution, 2005 Forum on International Arbitration, Philadelphia, July 14, 2005

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"Topical Issues in International Arbitration," 2005 International Centre for Dispute Resolution Forum on International Arbitration, Pittsburgh, July 13, 2005

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"Dispute Resolution in the International Arena," American Corporate Counsel Association, Pittsburgh, April 21, 2005

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"Best Practices in Complex Construction Arbitration," American Arbitration Association, Pittsburgh, November 18, 2004

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"Arbitrator Ethics and Disclosure Requirements," American Arbitration Association, Pittsburgh, November 11, 2004

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"Building ADR for the Better, "Second Annual National Forum on the Construction Industry, Orlando, November 4, 2004

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"Designing Your Remedy: Maximizing the Effectiveness of an Arbitration Clause," American Arbitration Association, Pittsburgh, October 28, 2004

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"Advanced Concepts in Construction Delay & Disruption Disputes," Pennsylvania Bar Institute, Pittsburgh, July 28, 2004

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"Managing Information Exchange to Expedite International Commercial Arbitration Hearings," CILS Third Biennial Conference on International Commercial Arbitration and ADR, Salzburg, Austria, June 10-13, 2004

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"Expert Advice for the Expert Witness in Construction ADR," American Arbitration Association, Pittsburgh, December 5, 2003

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"Arbitration Advocacy for Attorneys: A Guide to Case Preparation & Presentation in Arbitration," American Arbitration Association, Pittsburgh, Pennsylvania, November 6, 2003

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"U.S. Perspectives on International Dispute Resolution," International Centre for Dispute Resolution Forum on Arbitration of International Commercial Disputes, Pittsburgh, December 12, 2002

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"Pennsylvania Mechanics' Lien, Payment and Surety Bond Law," Lorman Educational Services, Pittsburgh, Pennsylvania, March 1, 2002

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"Corporate E-Mail: Addressing Risk Reduction and Electronic Record Retention Issues," Lorman Educational Services, Pittsburgh, December 6, 2001

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"ADR in the Construction Industry," Lorman Educational Services, East Brunswick, New Jersey, July 27, 2000•



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Résumé

L. TYRONE “TY” HOLT, ESQUIRE THE HOLT GROUP LLC Attorneys & Counselors at Law 1675 Broadway, Suite 2100 Denver, Colorado 80202 WESTERN NEUTRAL SERVICES, LLC Professional Alternative Dispute Resolution Services 1675 Broadway, Suite 2100 Denver, Colorado 80202

Telephone: 303•225•8500 Toll Free: 877•561•8319 Facsimile: 303•225•4585 Cell: 303•956•1615

E-mail: [email protected] Websites: www.holtllc.com

www.mediatorindex.com www.thecca.net www.imimediation.org

PERSONAL Date of Birth: July 28, 1949 Place of Birth: Mebane, North Carolina Citizenship: United States of America

Marital Status: Married Wife: Mary Daughter: Kathie (Age 30)

EDUCATIONAL BACKGROUND

DEGREES AWARDED:

Master of Theology (1997) Peace Theological Seminary and College of Philosophy Santa Monica, California

Juris Doctor (1974) The Law School Stanford University Palo Alto, California Bachelor of Arts (1971) Morehouse College Atlanta, Georgia

ADDITIONAL INSTITUTIONAL STUDY AND FORMAL COURSE WORK: September 2009 Chartered Institute of Arbitrators Keble College, Oxford, University, Oxford, England, UK The Diploma Course In International Commercial Arbitration Summer School (1970) University of North Carolina Chapel Hill, North Carolina Special Study (9/69-6/70) University of Madrid Institute for European Studies Madrid, Spain (Morehouse College Merrill Scholarship)

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Special Study (Summer 1969) University of Ghana Accra, Ghana, West Africa (Morehouse College – Summer Merrill Scholarship)

BAR AND COURT ADMISSIONS

Licensed in Colorado: 1974 Registration No: 005779

COURT ADMISSIONS (CURRENT)

Supreme Court of Colorado and all subordinate Courts United States District Court for the District of Colorado Superior Court, Los Angeles County, California (Pro Hac Vice) United States District Court for the Western District of Texas (Pro Hac Vice) United States District Court for the Northern District of Georgia (Pro Hac Vice) United States Court of Appeals for the Ninth & Tenth Circuits The United States Supreme Court

JUDICIAL CLERKSHIP

1974 (Spring) Law Clerk to The Honorable Preston Devine, Presiding Justice, California First

District Court of Appeals, San Francisco, California (Stanford Law School Externship Program)

PROFESSIONAL, CIVIC AND COMMUNITY ORGANIZATIONS, ASSOCIATIONS AND SOCIETIES

Fellow, College of Commercial Arbitrators ("CCA"), President, Member of the Board of Directors and Chair, Executive Committee; Past Chair, Membership Committee; Contributing Author, CCA

Guide to Best Practices for Commercial Arbitrators, 2nd Edition (2010)

Past Member, Governing Committee, American Bar Association Forum on the Construction Industry, 2007-2010

Certified Mediator, International Mediation Institute, http://www.imimediation.org/ltyrone-holt Member, National Academy of Distinguished Neutrals - http://www.nadn.org/colorado Member, American Arbitration Association (AAA), National Construction Arbitrator Master Panel Member, American Arbitration Association (AAA), National Panel of Construction Mediators Member, International Institute for Conflict Prevention and Resolution (CPR) Mediation and Arbitration

Construction Panels of Neutrals Member, Dispute Resolution Board Foundation Member, Association for Conflict Resolution

Member, Dean’s Advisory Council, The Stanford Law School Chair, Development Planning Committee, Morehouse College Member, Renaissance Commission, Morehouse College Life Fellow, American and Colorado Bar Foundations Member, Phi Beta Kappa National Honor Society, Delta of Georgia Chapter (1971) Member, Board of Directors, Colorado Black Chamber of Commerce Foundation Member, Board of Directors, The Denver Architectural Foundation

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EMPLOYMENT HISTORY [Since Graduation from College]

(Location is Denver, Colorado, unless otherwise specifically noted) 1974-79 Associate, Holland & Hart LLP, Attorneys

1979-81 Associate/Partner, Shank, Irwin & Holmes; Shank, Irwin, Conant, Williamson &

Grevelle (Dallas and Washington, D.C.)

1981-84 Partner, Durham, Gassman & Holt 1984-88 Principal, Holt & Gebow, P.C. 1988-91 Principal, Holt & Associates, P.C. 1991-92 Principal, Bookhardt, O’Toole & Holt, P.C. 1992-94 Director, PMCA, S.A., Geneva, Switzerland1 1993-94 Member and Committee Secretary, Site Selection Committee for the Headquarters

(Cairo, Egypt) and Regional Branch Offices, (Harare, Zimbabwe) of The African Export Import Bank World, African Development Bank, Adijan, Cote D’Ivoire, Western Africa

1994-95 Vice President & General Counsel, CMTS, Inc. [national construction management firm] 1995-2000 Principal, Holt Professional Corporation 2/00-9/01/03 Partner, Ireland, Stapleton, Pryor & Pascoe, P.C. 9/1/03 - Managing Principal, THE HOLT GROUP LLC, Attorneys & Counselors at Law, f/k/a Holt

& Stalder LLC, Attorneys & Counselors at Law 03/01/05 - President, WESTERN NEUTRAL SERVICES, LLC [professional alternative dispute

resolution services for the construction industry]

EXHIBITS

EXHIBIT A ADR BACKGROUND EXHIBIT B REPRESENTATIVE PUBLISHED ARTICLE, PAPERS AND PRESENTATIONS EXHIBIT C EXAMPLES OF CONSTRUCTION CASES WHERE MR. HOLT HAS SERVED AS LEAD COUNSEL

1 Managed Geneva office operations, handled communications interface with American, German and French shareholders, negotiated currency expatriation and transactional documents for soft commodities price “hedge” financing instrument between PMCA, S.A., and various African governmental entities, e.g., African Development Bank, Central Bank of Nigeria, Central Bank of Namibia, Central Bank of South Africa, Central Bank of Zimbabwe, Central Bank of Tanzania and Central Bank of Egypt.

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EXHIBIT A TO RESUME OF

L. TYRONE HOLT, ESQUIRE

ADR BACKGROUND (11/1/13)

Ty has been a commercial arbitrator since 1983 and has served as a mediator since 1985. Over the course of this time, he has served as a mediator in numerous construction disputes in numerous states, including Arizona, California, Colorado, Utah, Wyoming, Idaho, Kansas, Missouri and West Virginia. Ty has served in a construction arbitrator in most of the Western United States, including Arizona, California, Colorado, Wyoming, Utah and Iowa. He has also served as an advocate in arbitration and mediation proceedings in more than twenty states, including Arizona, California, Colorado, New Mexico, Utah, Wyoming, Idaho, Washington, Oregon, Kansas, Missouri, Texas

EXAMPLES OF CONSTRUCTION CASES MEDIATED BY MR. HOLT: 2000 – 2013

Ty has served as the mediator in over two hundred construction disputes over the last ten years. Examples are as follows: Mediation between general contactor and international airport authority over general contract, payment dispute, delay, impact and loss of productivity claims.

Mediation between horizontal construction general contractor and paving subcontractor over dispute regarding construction of section of interstate highway in mountainous terrain. Mediation among mechanical subcontractor, general contractor and owner over subcontract and payment dispute on construction of addition and remodel of public school project. Mediation between mechanical subcontractor and general contractor over subcontract and payment dispute on construction of addition and remodel of hospital.

Mediation with nine parties (City & County of Denver, General Contractor, Design Engineer, Inspector, Fabrication Subcontractor and Coatings Supplier), including large city, general contractor, four subcontractors, architect, engineer, and product vendor, with respect to the design, construction and construction inspection of two large steel bridges. The parties resolved their respective monetary claims and thereafter, the matter proceeded to decision in the appellate court on legal issues only. Mediation with three parties of a construction dispute in Wyoming among the general contractor against airport authority and the authority’s project architect. The mediation lasted two days and resulted in a resolution of all claims. The claims asserted included delay, acceleration, loss of productivity; damages for failure to approve change orders; and issues associated with liquidated damages provisions of the contract between the owner and the general contractor. The claimed amount was $1,400,000. Mediation of disputes among Missouri Highways and Transportation Commission, a national highway general contractor and its excavation subcontractor with respect to issues associated with the calculation of amounts claimed to be owed to the general contractor under the Spearin doctrine, for fill dirt supplied in connection with the construction of a highway interchange and bridge. The amount of

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the claims was a $2,990,000 negotiation and execution of liquidation and common interest agreements. Following the successful mediation, the settlement was approved by MoDOT and matter was resolved. Five day mediation in Idaho, with seven parties (Owner, General Contractor, Design Engineer, Clerk of the Works On-Site Engineer, Materials Testing Subcontractor, Excavation Subcontractor and Specialty Liner Subcontractor), including design and construction of railroad facility. Owner claims exceeded $25,000,000. All disputes involving the Owner, General Contractor, "Clerk of the Works" - On-Site Engineer, Excavation Subcontractor and Specialty Liner Subcontractor were resolved. A unique aspect of this mediation was that over ten insurance companies were involved, with coverage and excess coverage issues. Two party mediation of $13,000,000 claims relating to "differing site conditions" and related time based claims arising out of a subcontract, where prime contract was with federal government. Mediation of disputes between national highway general contractor and its excavation subcontractor with respect to issues associated with the negotiation and execution of liquidation and common interest agreements. Following the successful mediation, the two parties jointly pursued the prosecution of a claim against a state highway department. Mediation of a construction dispute among a general contractor, owner and “dirt work” subcontractor over excavation contract, on a bonded (payment and performance) job. Claims involved delay, impact and loss of productivity claims, along with breach of contract and claim on performance and payment bond. The claim exceeded $1,000,000 was involved a bridge on I-25 in Colorado. Two day mediation in Southern California, with three parties (Owner, General Contractor and Subcontractor), including claims in excess of $5,000,000, based upon design, construction and project close-out issues on high luxury condominium, in Los Angeles, California. All disputes involving the Owner and General Contractor were resolved. Two day mediation in Southern California, with three parties (Owner, General Contractor and Subcontractor), including design, construction and project close-out issues on a high luxury condominium, in Los Angeles, California. All disputes involving the Owner and General Contractor were resolved. One day mediation conference, in Phoenix, AZ, with three parties (Owner, General Contractor and Subcontractor), involving project close-out issues on major sports facility and subcontractor equitable adjustment claim. Two party mediation of $6,000,000 claim relating to design, construction and performance of water treatment facility. The two parties were the design engineer and the owner/municipality. Four party mediation involving a public utility in the electrical general and transmission business, the design-build engineer/contractor and several subcontractors with respect to the design, construction, commissioning and performance of a chilled water plant.

EXAMPLES OF CONSTRUCTION CASES WHERE MR. HOLT HAS SERVED AS ARBITRATOR: 2000 – 2012

TRANSPORTATION INDUSTRY CASES: Case 1

Served as Chair of three-arbitrator panel. Claim: $768,310.00. Two Parties: General contractor sued by

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assignee of subcontractor. Three weeks of hearings, resulted in a lengthy written opinion and award for the general contractor, plus attorneys’ fees, costs and expenses.

Case 2

Chair of three-person panel involving protracted construction dispute among the general contractor, an assignee of one of its subcontractors who defaulted, and three other subcontractors who were brought into the dispute on a third-party basis by the general contractor on theories of indemnity and contribution. Three weeks of hearings, with award for general contractor, plus subsequent three days of hearings on attorneys' fees. Award was confirmed by the United States District Court for the District of Colorado and subsequently affirmed in an opinion of the Tenth Circuit Court of Appeals.

Case 3 Mr. Holt served as the single Arbitrator. The arbitration involved a general contractor and subcontractor

with respect to an Earth work dispute between general contractor and subcontractor over qualities, change order and claims for additional compensation. The claims exceeded $250,000. An award was rendered in 2011. UTILITY INDUSTRY CASE Mr. Holt served as one member of a three (3) member arbitration panel. The dispute involved claims by the general contractor against electric utility seeking $4,000,000, arising out of the construction of a major addition to a power plant in the Midwestern U.S. The claims asserted included delay, acceleration, loss of productivity; damages for failure to approve change orders; and issues associated with various provisions of the contract between the owner and the general contractor. HOTELS: Case 1

Member of three-member panel, for four-week arbitration hearing on a 400-room new hotel project. Dispute was between owner and general contractor on design-build procurement. Claim of $3,000,000 by general contractor; counterclaim of $2,000,000 from Owner. Decision and Award following hearing, with net award of $1,300,000 to general contractor. Case 2

Served as single arbitrator for eight (8) weeks of arbitration hearings over 18 months on a luxury hotel, involving eight parties, including individual unit owners, condo association, general contractor, architect, mechanical design-build subcontractor, electrical subcontractor, roofing subcontractor, and developer. Claim of $2,500,000. Decision and award to condominium owners and its homeowners' association.

Case 3 Mr. Holt currently serves as one member of a three (3) member arbitration panel. The claims involve

claims of breach of construction contract, wherein $9,000,000 in damages are requested. Panel has heard legal arguments and rules on certain dispositive motion.

MULTI-FAMILY AND RESIDENTIAL DISPUTES:

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144-Unit Condominium Project Sole Arbitrator in multi-party arbitration involving a $25,000,000 condominium project in the Western

United States. Ten (10) days of hearing, with claims totaling in excess of $7,000,000. Claims included breach of contract, design professional liability, subcontractor design-build, construction defect and warranty claims.

120-Unit Condominium Project Chair of three-arbitration panel between owner/developer and general contractor following completion of

condominium project, where owner had failed to pay for contract balance, delay and impact claim. Award for general contractor for $945,000, following three (3) weeks of hearings.

Single Family Residence Remodel

Single arbitrator case, involving dispute between remodeling contractor and couple who owned home over cost of remodeling and performance of windows and doors. Award of $50,000 to homeowners, after three days of hearings.

Multi-family Development in Caribbean

ICDR Rules dispute involving the development of a multi-family residential project. Member of three-person arbitration panel for construction contract dispute between developer and general contractor. TELECOMMUNICATIONS INDUSTRY/FIBER OPTIC CABLE CASES:

Case 1

Single arbitrator in a case between a major telephone company and a general contractor, claiming $2,400,000 in damages for additional work and out of scope work on the installation of a fiber optic telephone cable in northern Arizona. Award rendered for telephone company.

Case 2 Single arbitrator in dispute between telecommunications company, general contractor and its

subcontractor over additional unit costs and charges on multi-state fiber optic cable installation in southwestern United States. Decision and award for general contractor and subcontractor for $1,400,000. RETAIL, SHOPPING CENTER/LAND DEVELOPMENT CASES: Case 1

Dispute among shopping center developer/owner/operator, general contractor and three subcontractor, including delay, impact, loss of productivity, construction defects and contract balance claims. Five insurance carriers were involved in mediation representing prior and excess insurance policies.

Case 2 Arbitration between mechanical subcontractor and general contractor subcontract and payment

dispute on construction of Walmart Store project.

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EXHIBIT B TO RESUME OF


(November 1, 2013)

REPRESENTATIVE PUBLISHED ARTICLES, PAPERS AND PRESENTATIONS

June 2014 Faculty member, American Bar Association, Alternative Dispute Resolution Section, Annual Arbitration Institute, Washington, D.C., June 6-7, 2014.

January 2014 American Bar Association, Forum on the Construction Industry, January 2014 Midwinter

Meeting: Unveiling the Mysteries, Atlantis Paradise Island, Bahamas. Paper (November 2013) and Presentation (January 2014) “Demystifying the Arbitrator’s Expectations: Best Practices for Promoting Efficiency and Economy in Arbitration”, L. Tyrone Holt, Esq., with Kevin P. Walsh, Esq. of The Holt Group LLC, on the paper.

October 2013 American Bar Association, Forum on the Construction Industry, Fundamentals of

Construction, Second Edition, Chapter 2 - The Design Professional”, L. Tyrone Holt, Esq., with Co-authors: Matthew Ninneman, Esq. and Carrie L. Okizaki, Esq., © 2013 ABA Publications, Inc.

September 2013 American Bar Association, Forum on the Construction Industry, Construction ADR

Handbook Chapter 32 - The Design Professional’s Perspective on ADR - L. Tyrone Holt, Esq., with Co-authors: Kevin P. Walsh, Esq., Carrie L. Okizaki, Esq., the Honorable Raymond D. Jones (Ret.), and Cornelius “Kin” DuBois, FAIA, © 2014 ABA Publications, Inc.

September 25, 2013 Practicing Law Institute, Building Better Construction Contracts 2013 Program, “Ethical

Issues in Mediation”, © PLI - Paper by L. Tyrone Holt, Esquire and Kevin P. Walsh, Esquire; Presentation by L. Tyrone Holt, Esquire: September 25, 2013, New York, New York).

April 5, 2013 American Bar Association, Dispute Resolution Section, 15th Annual Spring Conference,

Fairmont Chicago Millennium Park, Chicago, Illinois “Best Commercial Arbitration Practices”, Edna Sussman, College of Commercial Arbitrators, Scarsdale, NY Tyrone Holt, College of Commercial Arbitrators, Denver, CO, Eugene Farber, Farber, Pappalardo & Carbonari, White Plains, NY.

January 2013 American Bar Association, Tort Trial & Insurance Practice Section, 2013 Annual

Meeting, New York, New York, 2012 Fidelity and Surety Law Committee, “Recovery of Fees and Costs in Construction Litigation and Arbitration”, Jennifer W. Fletcher, Esquire, L. Tyrone Holt, Esquire, and Margery S. Bronster, Esquire.

December 2011 American Arbitration Association, AAA University Webinar “Large, Complex

Construction Disputes: The Dynamics of Multi-Member Mediation Teams”, L. Tyrone Holt, Esquire and Alan Bates, Esquire.

May 2011 ASCE Journal of Legal Affairs & Dispute Resolution in Engineering and Construction,

Co-author of Chapter 63, “Large, Complex Construction Disputes: The Dynamics of Multi-Member Mediation Teams”, L. Tyrone Holt, Esquire and Alan Bates, Esquire.

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September 2010 AAA Handbook on Mediation, 2nd Edition, Juris Publishing (2010), Co-author of Chapter 63, “Large, Complex Construction Disputes: The Dynamics of Multi-Member Mediation Teams”, L. Tyrone Holt, Esquire and Alan Bates, Esquire.

September 2010 American Arbitration Association, The Fall 2010 American Arbitration Association, “Construction Conference: Planning Resolution Strategies”, Allen Overcash, Esquire and L. Tyrone Holt, Esquire (Paper and Presentation).

April 9, 2010 American Bar Association, Section of Dispute Resolution, 12th Annual Spring Conference, San Francisco, CA, “Six Deadly Behaviors to Avoid in Mediating

the Complex Multi-Party Case”, L. Tyrone Holt, The Holt Group, LLC, Denver, CO; Dave Rudy, Just Accord, Inc., Black Forest, CO; William Peters, Esquire, Gordon & Rees LLP, San Francisco, CA (Paper and Presentation).

February 2010 American Arbitration Association, AAA University Webinar – “Five Steps to Fast-Track

the Large Complex Construction Case”, Allen Overcash, Esquire and L. Tyrone Holt, Esquire (February 25, 2010) (Paper, Presentation and National Webinar).

September 2009 DePaul University, College of Law School, DePaul Business & Commercial Law

Journal, Spring 2009, “Whither Arbitration? What Can Be Done to Improve Arbitration and Keep Out Litigation’s Ill-Affects?” L. Tyrone Holt, with Raymond Dean Jones, Esquire, (Judge Ret.), Daniel J. Hillis, Esquire and Felicia G. Euell, Esquire.

April 16, 2009 American Bar Association, Section of Dispute Resolution, 11th Annual Spring

Conference, Sheraton New York Hotel & Towers, New York, New York, “Mediating Large and Complex Construction Disputes”, L. Tyrone Holt, Esquire and Mark J. Heley, Esquire April 2009 (Paper, Presentation and National Teleconference).

March 2009 DePaul University Law School, 2009 Arbitration Symposium “Winds of Change:

Solutions to Causes of Dissatisfaction with Arbitration”, Chicago, Illinois, Presentation by L. Tyrone Holt, Esquire.

February 2009 American Arbitration Association, 2009 AAA and ICDR Neutrals Conference –

Coronado Island Marriott Resort & Spa, San Diego, California, “Advanced Mediation – Large and Complex Construction Disputes”, L. Tyrone Holt, Esquire and Alan Bates, Esquire (February 2009).

Oct 31/Nov 1, 2007 Design Build Institute of America, 2007 Design-Build Conference & Exposition, Dallas,

Texas, “Bridging Documents - How Do They Alter the Liability of Design-Build Participants”, G. William Quatman, Esquire, L. Tyrone Holt, Esquire and Bennett Greenberg, Esquire (Paper and Presentations).

May-July 2007 Dispute Resolution Journal, “Large, Complex Construction Disputes: The Dynamics of

Multi-Party Mediation”, American Arbitration Association © 2007. March 2007 Practicing Law Institute, “Making Construction Arbitration ‘Better, Cheaper and

Faster’”, © PLI - Paper and Presentation: March 2, 2007, New York, New York). January 2007 Co-Editor Design Professional/Construction Manager Liability Law, © ABA Press,

January 2007. January 25, 2007 American Bar Association, Forum on the Construction Industry, 2007 Mid-Winter

Meeting, “Use of Bridging Consultants in Design-Build”, © 2007 ABA Publications, Inc., G. William Quatman, Esquire and L. Tyrone Holt, Esquire (Paper and Presentation).

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January 2007 “Considerations for Subconsultant and Subcontract Agreements for Design Professionals and Construction Managers”, Chapter 15, Co-author with Carrie L. Okizaki, Esquire, Construction Manager – Design Professional Liability Handbook, © ABA Press - January 2007.

April 21, 2006 PLI - Practicing Law Institute, “Mediate, Arbitrate or Litigate—Proper Forum Selection

for Construction Disputes”, © L. Tyrone Holt, Esquire - Paper and Presentation: April 21, 2006, New York, New York).

November 2005 American Bar Association, Sections of Dispute Resolution and Litigation, 2005 Joint

CLE Program, “Structuring and Formatting the Mediation of Complex, Multi-Party, Multi-Issue Construction Disputes”, © 2005 ABA Publications, Inc. and L. Tyrone Holt, Esquire (Panel Presentation: Las Vegas, Nevada, November 11, 2005).

June 2005 Continuing Legal Education of Colorado, Inc., “Arbitration and Mediation: Current

Trends, Effective Techniques, and Expanded Uses for ADR”, © L. Tyrone Holt, Esquire (Paper Published June 2005 by CLE of Colorado, Inc.; Presentation: June 2, 2005).

April 2005 PLI - Practicing Law Institute, “Representing the Multi-State Client in Arbitration

Proceedings”, (Paper Published April 2005 by Practicing Law Institute, New York, New York; Presentation: April 2005).

October 2004 Continuing Legal Education of Colorado, Inc., “Defending the Construction Lawsuit to

Maximize the Potential Recoveries that are Insured,” © L. Tyrone Holt, Esquire (Paper Published October 2004 by CLE of Colorado, Inc.; Presentation: October 2004).

April 2004 Continuing Legal Education of Colorado, Inc., “Standard Construction Contract Clauses

from the Perspective of the Owner, Contractor and Design Professionals”, © L. Tyrone Holt, Esquire, Jeffery B. Stalder, Esquire and Charlotte Wiessner, Esquire (Paper Published April 2004 by CLE of Colorado, Inc.; Presentation: April 2004).

October 2003 Continuing Legal Education of Colorado, Inc., “Representing Design Professionals”, ©

L. Tyrone Holt, Esquire and William H. Knapp, Esquire (Paper Published October 2003 by CLE of Colorado, Inc.; Presentation: October 2003).

August 2003 American Arbitration Association, 2003 National Neutrals Retreat – Providence, Rhode

Island, “Mediating Construction Disputes Involving Public and Quasi-Public Entities -- Selected Issues, Challenges, Techniques and Approaches,” The Westin Providence, Providence, Rhode Island, © 2003 L. Tyrone Holt, Esquire (Paper Published August 8, 2003; Presentation: August 22-23, 2003).

June 2003 American Council of Engineering Companies of Colorado, Expert Witness Certification

Committee, “Litigation and the Role of the Expert Witness,” © L. Tyrone Holt, Esquire (Paper Published and Presentation: Lakewood, Colorado, June 20, 2003).

January 2003 American Arbitration Association, 2003 National Neutrals Retreat “Advanced Concepts

& Techniques for the Successful Mediation of Public Sector Construction Disputes”, © 2003 L. Tyrone Holt, Esquire. The Westin Kierland Resort & Spa, Scottsdale, Arizona (Paper Published: December 2002; Presentation: January 2003).

April 2002 American Bar Association, Forum on the Construction Industry, 2002 Annual Meeting, “Understanding, Negotiating and Documenting the Relationships Between and Among Prime Design Professionals and Their Consultants,” © 2002 ABA Publications, Inc.

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January 2002 American Bar Association, Forum on the Construction Industry/TIPS Fidelity & Surety Committee, 2002 Joint Winter Meeting, “Legal Limitations On Allocating Risk Through Indemnification Agreements,” © 2001 ABA Publications, Inc.

Summer 2001 The Construction Lawyer, “AIA Electronic Forms – “New” Version 3.0 – The Good, The Bad, and The Ugly,” American Bar Association © 2001 ABA Publications, Inc.

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EXHBIT C TO RESUME OF


EXAMPLES OF CONSTRUCTION CASES WHERE MR. HOLT SERVED AS LEAD COUNSEL IN LITIGATED OR ARBITRATED DISPUTES - REPRESENTATIVE CASES

The Estate of Bruce Everett Walker v. Harris, Case Number: Denver District Court, 2013 CV 33682

(2013) Lead counsel for buyer in real property purchase contract dispute. Hearing before Denver District Court

to enforce mediation requirement won and case settled in mediation before JAMS appointed mediator. Harvestime Construction v. St. Stephen Baptist Church (2013) Lead counsel for owner in arbitration between owner and design/builder defending breach of contract

claims, before JAMS single arbitrator. An award for owner for damages, attorney’s fees and interest was made by the arbitrator.

Layton Construction Co., Inc. v. Barclays Capital Real Estate Inc., et al., Eagle County, Colorado, Case Number 2009CV609 (2009 – ______)

Mr. Holt serves as lead counsel for the Plaintiff, general contractor, in this matter. The litigation involves the construction of a luxury hotel in Vail, Colorado and at its beginning had more than twenty parties. Layton is seeking recovery of $27 million in damages and is defending $135,000,000 in counterclaims. Pertinent issues in the case involve construction budgeting, scheduling, architectural and mechanical design issues, construction contract interpretation, and various construction issues. At the time of trial, more than ten parties remained in the case.

Golden Triangle Construction, Inc. and National Fire Insurance Company of Hartford v. Dynamic Sports Construction, Inc., Case Number 2009 CV 1425 Adams County Colorado District Court (2010) This lawsuit was filed against our client the Defendant Dynamic Sports Construction, Inc. (“DSC”), by

Plaintiffs, Golden Triangle Construction, Inc. (“GTC”), the general contractor and its insurer, National Fire Insurance Company of Hartford (“National Fire”). The Complaint alleges negligence and breach of contract arising out of the construction and renovation of the Adams County Waymire Dome & Conference Center in Adams County, Colorado (the “Project”). The Plaintiffs contended that an incident of alleged mercury contamination occurred during the performance of DSC’s work on the Project, resulting in $148,798.00 in damages allegedly resulting from the purported contamination. A four (4) day jury trial was held in August 2010, before Edward C. Moss, District Court Judge. The jury entered a verdict for the Defendant on all counts and the Court entered Order of Judgment in favor of DSC on September 14, 2010.

Zehren and Associates, Inc. and Monroe & Newell Engineers, Inc. v. Braeburn Real Estate Development,

LLC, Braeburn Builders Ltd, Douglas Boyles, Individually and Timothy White, Individually v. The EP Boundary LLC and Michael Barry, Individually (2009)

Lead counsel for architect and engineering in arbitration to enforce their copyrights in drawings against

developer and developer’s architect. An award of $565,211.00 in damages, attorney’s fees and interest was made by the three-person arbitration panel, following eight (8) days of hearings. United States District Court for the District of Colorado confirmed arbitration award in 2009 WL 42690 (D.Colo.) Slip Opinion available in Westlaw only.

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North Hills Company LLLP v. Martin/Martin, Inc., Wiss Janney, Elstner Associates, Inc., John Lund, P.E. and Gary Thomas, P.E., Jefferson County, Colorado, District Court Case No. 05 CV 1862 (2006) Defense counsel for three (3) civil and structural engineering defendants (two individual and one

corporate) in a breach of contract, negligence, negligent misrepresentation and breach of warranty case. The case was tried to a jury in June 2006, resulting in defense verdict.

Scholar Group Architects, P.C. v. Sooper Credit Union, 113 3d 768 (Colo. 2005)

Lead trial counsel and appellate counsel in construction arbitration. Appeal was necessary to obtain order directing the Denver District Court to enter order confirming arbitration award and the correction of a mathematical error in the award. Court Appeals decision was reversed by Colorado Supreme Court.

The Young Men’s Christian Association (“YMCA”) v. Liberty International Underwriters US District Court, Civil Action No. 03-D-0760 (PAC) (2002-2004) Lead trial counsel for Plaintiff, The YMCA of Metropolitan Denver, in a “first party” insurance bad faith

and breach of contract action. The YMCA sought damages in excess of $7,000,000. At the conclusion of discovery, the matter settled on terms that were acceptable to the YMCA. The terms of the settlement agreement are confidential.

Zimmerman Metals Inc. v. M.A. Mortenson Company; Keystone/ Intrawest L.L.C., d/b/a Keystone Real Estate Developments; Federal Insurance Company; and American Home Assurance Company, District Court, County of Summit, Colorado, Civil Action No. 98 CV 277, Division R

Lead defense counsel for one of Colorado’s largest architectural firms against subcontractor and general contractor delay, impact, loss of productivity and acceleration, breach of contract and professional liability claims on $40,000,000 mixed use project in the Colorado mountains. Claim was settled during mediation after extensive discovery and motions practice.

City & County of Denver v. C.W. Fentress, J.H. Bradburn and Associates, P.C., et al., District Court, County of Denver, Colorado, Civil Action No. 94 CV 845, Division 2 Lead defense counsel for bifurcated multi-party professional liability and insurance coverage litigation

arising out of the construction of the Denver International Airport Terminal Building and associated civil improvements.

Federal Deposit Insurance Corporation v. Mars, 821 P.2d 826 (Colo. App. 1991)

Lead trial counsel and appellate counsel for Plaintiff Federal Deposit Insurance Corporation in a quiet title action successfully tried to Court, which reversed in part and affirmed in part on appeal.

The May Department Stores Company v. University Hills, Inc., May Design and Construction Company, Al Cohen Construction Company, SLP, Inc. et al., 789 P. 2d 434 (Colo. App. 1989), Cert Denied 1990

Lead trial counsel and appellate counsel for the architect in a case tried to a jury before Judge Warren Martin of Denver District Court, where department store sued shopping center owner, its manager, general contractor and architect to recover damages sustained alleged to have resulted from a fire, which destroyed the University Hills Mall in 1983. Pre-trial motions for partial summary judgment eliminated certain legal issues and allowing more efficient presentation of evidence to the jury.

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Jardell Enterprises, Inc. v. Tri-Consultants, Inc., 770 P.2d 1301 (Colo. App. 1988) Lead trial counsel and appellate counsel for construction subcontractor interpretation of the first reported Colorado appellate decision on the economic loss rule.

Financial Associates, Ltd. v. G. E. Johnson Construction Company, Collins & Roberts, Architects, Lincoln-Devore Testing Laboratories, Inc. and Howard C. Dutzi & Associates, Inc. Structural Engineers, 723 P.2d 135 (Colo. 1986) Lead trial counsel and appellate counsel for structural engineering defendant, in multi-party construction

case involving claims relating to expansive soil damage in office building in Colorado Springs, Colorado. Appellate issues focused on interpretation of Colorado’s two-year statute of limitations applicable to construction litigation. Case was bifurcated on remand, where jury verdict for defense was obtained after one-week trial.

A.T.E. Inc. v. Nelson West Constructors, Inc. and California Park Construction Company, 757 P.2d 151(Colo. App. 1988)

Lead trial counsel and appellate counsel for defendant general contractor in case involving the interpretation of a construction subcontract on construction of air cargo building at Stapleton International Airport.

LARGE, COMPLEX CONSTRUCTION DISPUTES: THE DYNAMICS OF MULTI-MEMBER

MEDIATION TEAMS

L. TYRONE HOLT, ESQUIRE ALBERT BATES, ESQUIRE

FACTUAL SCENARIO The City of New Hope Transit Authority (“City”) is constructing a new Multi-Modal Transportation Center on the site of its old train station. The City agreed to raise the money to fund the construction of the Project with municipal bonds. When completed, the Project will be jointly owned by a three party public-private “partnership” consisting of the City, the Developer and the Transit Authority. Project Summary: The Project consists of Multi-Modal Transportation Center [Train/Bus/Light Rail Line] Station, a 400 Room Luxury Hotel, and a three level underground parking Garage. The Hotel is constructed on top of the Station and the adjacent Parking Garage. The Project was procured on a design, negotiate, build basis, at a contract price of $180,000,000. Change Orders paid to date have increased the project cost to $210,000,000. Total funds available to the City for construction are $225,000,000. The City is celebrating its 100th anniversary on January 15, 2008. The mayor of the City of New Hope has publicly announced that she will hold the anniversary party at the new facility. Although it is not yet completed, the hotel is “sold out” for the week of the anniversary party. The Mayor and the City Council are up for reelection in 2008. Architect and Its Consultants:

Owner engaged Design + Architects P.C. as its Architect to design a “world class” facility.

Design + is one of the largest architectural firms in the state and has its principal office in the City of New Hope. Design + has retained various engineering and other consultants. Given the time constraints, Design + contends that it was not given sufficient time to fully complete its design and coordinate its work and that of its various design consultants. The design consultants claim that they were placed under severe time constraints by the Owner and Design +. Design + has a $10,000,000 professional liability practice policy. Its consultants have significantly less professional liability insurance, with the structural engineer having $1,000,000 in coverage, and the remaining consultants having not more than $500,000 each. One of the design consultants has another claim pending against its policy.

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Construction Manager: The Owner has engaged a construction manager as the Owner’s Representative during the design and construction phases of the Project. The CM will provide scheduling updates to the Owner, review pay applications and have a full time on-site project representative throughout construction. The CM has $5,000,000 in professional liability coverage. General Contractor and Its Subcontractors: Design +’s “Issued for Bid” drawings and specifications were used by the Owner to negotiate a general construction contract with Big Regional General Contractor, Inc. (“BRGC”) for the Project. Changes contained within the “Issued for Construction” drawings resulted in agreed change orders increasing the contract sum by $13,000,000. BRGC is the largest general contractor in the region. It has a good reputation and has successfully performed other work for the City. BRGC has a $50,000,000 performance and a $50,000,000 payment bond on the Project. Although BRGC self-performed the concrete work, it subcontracted most of the other elements of work. BRGC did not require payment or performance bonds from any of its subcontractors. Project History While it was excavating the foundations for the site, the BRGC’s excavator encountered an unexpectedly large amount of very hard rock in the subsurface, significantly delaying the excavation work in for the Station and the Parking Garage. BRGC was given a significant change order to cover the direct costs for additional equipment and personnel. However, the Owner refused to grant an extension of time to the project schedule. In addition to the problems encountered with the foundation work, the Contract Documents contained numerous errors and omissions. With respect to the Station and Parking Garage, the structural drawings were skeletal at best. The Structural Engineer consistently took the position that the drawings contained the necessary information, and the issues were with the software system used by the steel fabricator. The fabrication drawings were habitually late, and often required resubmittal. However, the structural engineer reissued the connection details on three occasions, and certain code compliance issues with the structural steel suspended work in limited areas of the Project from time to time. With respect to the Hotel, BRGC alleges a complete lack of detail on the architectural drawings, and asserts numerous conflicts within and between the structural, MEP and architectural drawings. As a result, there were nearly 700 RFI’s on the Hotel portion of the project alone. In addition, the Owner made numerous changes to the Station and Parking Garage, including a change to poured-in-place concrete from pre-cast decks in the parking garage, and made significant changes to the floor plans for the public areas and modifications to the room configuration in the Hotel. There have been approximately 300 approved change orders, and five sets of revised drawings have been issued. The Owner has steadfastly refused to grant any extension of time, but has made some minimal acceleration payments to expedite critical elements such as the concrete and structural steel.

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BRGC also had a number of issues on the project. It terminated its electrical subcontractor for default because the electrical sub failed to coordinate its work on the Station and Parking Garage with the other trades, requiring significant rework and disrupting the planned sequence of the other trades. Its steel fabricator was habitually slow with its fabrication drawings and details. Its erection contractor suffered from manpower issues and never achieved the productivity contemplated for the project. On the poured-in-place concrete work, BRGC never obtained the production rates that it estimated at the time it bid the job, even in relatively unimpacted areas of the project. Project Status The Multi-Modal Station and Parking Garage were originally scheduled for completion on June 1, 2006. Each was substantially complete on December 22, 2006, nearly six months late. The Hotel is scheduled to open on January 15, 2008. The latest schedule shows an anticipated completion date of July 30, 2008. BRGC is subject to liquidated damages of $25,000 per day for each day of delay in the opening of the Hotel. The Claims BRGC has submitted a claim, on its own behalf and on behalf of its major subcontractors, in the amount of approximately $20,000,000, for the delay and disruption to its work on the Project through January 31, 2007. Specifically, it seeks damages for labor and equipment inefficiency, constructive acceleration, and increased home and jobsite supervision costs, plus applicable mark-up on the claims of the subcontractors. BRGC and the CM have also developed a recovery schedule to achieve occupancy of the Hotel by January 10, 2008. The estimated incremental cost of implementing the recovery schedule is $17,000,000, representing premium time, additional shifts and equipment, additional supervision, additional home office support, labor and equipment inefficiency, and subcontractor incentives. The Owner has denied entitlement to any extension of time, and has attributed responsibility for the past costs to BRGC and its subcontractors. As to the recovery schedule, the Owner is committed to funding selective acceleration measures, but believes that BRGC is responsible for the delay and should bear the cost of getting the Project back on schedule. Design + and the structural engineer have asserted significant claims for additional services against the Owner, claiming that their level of involvement in the construction administration phase greatly exceeded any reasonable estimate, that the number of RFI’s was excessive, and that the reissuance of drawings on five occasions was a result of the magnitude of the changes requested by the Owner and the incompetence of BRGC. The Owner is preparing an errors and omissions claim against the architect and its consultants, attributing responsibility for many of the change orders and most of the Contractor’s claims to the design professionals. It is also preparing a claim against the CM for scheduling and supervision deficiencies. The contracts do not allow joinder of the design professionals in any arbitration between the Owner and BRGC.

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Mediation Request: Arbitration demands have not yet been filed. As a preemptive strike, the Mayor called the Regional Vice President of the American Arbitration Association to see if the AAA could provide an experienced construction mediator to resolve the issues among the parties. The Mayor told him that she wants to hold the City’s anniversary party at the hotel as scheduled, and she does not want to have any “clouds” hanging over the Project or over her reelection campaign.

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At the American Arbitra-tion Association’s (AAA)recent Construction Me-

diation Conference in Miami, entitled“What You Can’t Not Know,” we facil-

itated a discussion of the complexity ofmediating large, complex construction

disputes, focusing particularly on thedynamics associated with multi-party media-

tion. Mr. Holt focused on the role of themediator, while Mr. Bates focused on the role of

lead outside counsel. The purpose of this articleis to share the highlights of the Miami discussion.

C O N S T R U C T I O N

LARGE, COMPLEX CONSTRUCTION DISPUTES:

THE DYNAMICS OF MULTI-PARTY MEDIATIONMediating the large,

complex construc-tion dispute from the

vantage point of counseland the mediator. Special

attention is paid to orga-nizing and dealing with nego-

tiating groups.

BY ALBERT BATES, JR., AND L. TYRONE HOLT

Albert Bates Jr. is a partner in the Trial Practice Group of DuaneMorris, LLP, focusing on construction litigation and domestic andinternational arbitration. An arbitrator or mediator, Mr. Batesserves on the AAA’s Construction Arbitrator Master Paneland represents the ABA Construction Litigation Committeeon the AAA’s National Construction Dispute ResolutionCommittee.

L. Tyrone Holt is the managing principal of The HoltGroup LLC, in Denver, Colorado. Mr. Holt pro-vides professional construction arbitration andmediation services throughout the United Statesthrough his company, Western NeutralServices, LLC. He is a Fellow of the Collegeof Commercial Arbitrators and a LifeFellow of the American Bar Foundation.He currently serves on the governingcommittee of the ABA Forum on theConstruction Industry. He is a co-editor and a chapter author of thebook, Design Professional andConstruction Manager Liability.He also serves on the AAA’sNational Construction Arbi-trator Master Panel.

Reprinted from the Dispute Resolution Journal, vol. 62, no. 2 (May-July 2007), a publication of the American Arbitration Association,

1633 Broadway, New York, NY 10019-6708, 212.716.5800, www.adr.org.

2 M A Y / J U L Y 2 0 0 7

Hypothetical ProblemComplex construction projects involve many

stakeholders. The fact pattern that we used at theconference involved a public-private partnership asthe owner of a project that involved a multi-modal(train/bus/light rail) transportation station, a 400-room luxury hotel and a three-story parkinggarage. The owner retained an architect, who inturn retained a number of consultants, many ofwhom retained subconsultants. The owner alsoengaged a construction manager with full-time sitesupervision responsibilities. The project was bidon a “design, negotiate and build” basis, funded inlarge part through the issuance of municipalbonds. The construction contract was awarded toa general contractor, who retained a number ofsubcontractors to perform significant portions ofthe work. Materials were pur-chased from a number of vendorsand suppliers by the contractorand subcontractors. Each of theparticipants had various types andamounts of insurance coverage.

The general contractor assert-ed claims against the owner forsignificant delay and disruption,as well as labor and equipmentinefficiency claims. These claimsimplicated the owner, architect,various consultants and the con-struction manager. The subcon-tractors had similar delay andinsufficiency claims against thegeneral contractor. The owner asserted claimsfor liquidated damages on certain phases of thework, alleged various deficiencies in the work,and was pushing the general contractor to devel-op a recovery schedule. The owner was alsopreparing an error and omission claim against thearchitect and derivatively some of the architect’sconsultants, as well as a claim against the con-struction manager for scheduling and supervisiondeficiencies. The architect and several of its con-sultants had significant unpaid invoices and theywere developing a claim for additional services asa result of acts and omissions by the owner, theconstruction manager and the general contractor.

Identifying the Negotiating GroupsThis fact pattern is not atypical and it illus-

trates the complexity of the issues before a media-tor on a large, complex construction project. Thefirst challenge for the mediator is determining therelationships between the various parties to thedispute and the issues on which certain partiesmay be aligned. In Miami, we called this deter-mining the number of “packs” (i.e., negotiating

teams) participating in the mediation process. Ageneral consensus must be reached among thenegotiating teams before a facilitated resolution ofthe dispute can be achieved by the various stake-holders and their teams. Consequently, identify-ing these teams is an important task for the suc-cessful mediator.

It is obvious that the claimant and respondenthave divergent interests and views on the meritsof the underlying controversy. They often dis-agree about facts, the causes of delay and disrup-tion, the completeness and accuracy of the draw-ings, the amount of damages actually resultingfrom the alleged causes, and a myriad of otherissues. Other than an overriding goal of “mini-mizing exposure” or “maximizing recovery,” thestakeholders on each side of the table may have

disparate interests, which couldbe economic or non-economic innature. However, the interestsamong the stakeholders on the“owner’s side of the table” or the“contractor’s side of the table”may also be quite divergent.

Further, the members of eachnegotiation team often have diver-gent interests. To take a simpleexample, the goals and objectivesof the attorney, the architect ofrecord and the architect’s insurermay differ significantly. Thedynamics may be more difficultwhen the owner is a public-private

partnership or a joint venture or other consortiumcreated for the project. The same is true if thecontractor is an entity created for the project. Thedynamics may also be difficult on publicly bid pro-jects, particularly in states that require public bid-ding of multiple-prime contracts.

Initial ConsiderationsIn spite of their divergent interests, the stake-

holders must open up the lines of communicationand strive to reach consensus on important pro-cess issues. Initially, they must agree on a media-tor and explore the nature and extent of informa-tion to be exchanged in advance of the mediation.If the process is to be successful, all stakeholdersmust be fully engaged in the mediation process.Other important initial considerations that mustbe addressed include:

• Who comprises the negotiating team foreach entity? Who should participate in themediation? To what extent should experts beinvolved in the negotiating team? Who with-in the company must attend the mediationfor it to be successful?


A general consen-sus must be

reached amongthe negotiatingteams before a

facilitated resolu-tion of the disputecan be achieved.

3

• How should the negotiating team approachthe mediation session? What role will eachparticipant play? Who will be the spokesper-son? To what extent should the businessprincipals directly interface with each otherprior to or during the mediation?

• How many negotiating teams are there?Should everyone on the owner’s side of thetable meet collectively to prepare for themediation, or will the owner, design profes-sionals and construction manager approachthe mediation independently? Is there a“joint defense agreement”? How does thepresence or absence of such an agreementaffect the interests of the parties at the medi-ation?

• Have the insurers made coverage determina-tions? How do the coverage issues, if any,affect the mediation process? Is there a dis-pute between the insured and the insurerthat is relevant to the mediation?

• How can the carriers be forced to becomeengaged in the process?

There could be other special considerations ina public project and in one that is publicly bid.

Mediator Selection ProcessAs Mr. Holt said in Miami, the first objective

in mediator selection is “Do No Wrong.” Inother words, selecting the right mediator isimportant, but retaining the wrong one can befatal to an early and cost effective resolution ofthe disputes. Factors to be considered in themediator selection process include the mediator’squalifications and experience, specifically:

• How many times has the mediator beeninvolved with this type of dispute, either as amediator, as counsel for a party to mediationor in some other capacity? There are lots ofconstruction mediators in the United States,but only a small subset of those mediatorshave the experience and skill set to handlelarge, complex, multi-party constructionmatters.

• Is public-sector mediation experienceimportant? What about specialized con-struction knowledge or specialized insur-ance claims experience?

• A large percentage of construction media-tors are attorneys. Is the likelihood of suc-cess in resolving this dispute maximized byselecting an attorney, or is this a matter bestaddressed by an industry professional?

• Is the mediator’s mediation philosophy im-portant? What style would maximize thelikelihood of resolving the dispute?

The consensus at the Miami conference was that

technical expertise and prior experience with large,complex construction projects is essential. To besuccessful, the mediator must structure the media-tion conference to facilitate the meaningfulexchange of information among the parties. Eachstakeholder must buy into the process, and must beprepared, motivated and ready to address the mat-ters in dispute. Achieving these preliminary objec-tives requires a skilled and knowledgeable mediator.

Preparation for the Mediation ConferenceThe initial contact between the mediator and

the parties is very important to the success of theprocess. The process begins with the initial con-tact. The mediator needs to lead the discussion tomaximize the utility of the mediation process andto begin to understand the obstacles that maypresent impediments to resolving the dispute. Indoing so, the mediator needs to recognize thedivergent personalities within each negotiatingteam. Most teams contain both “stabilizers”—members who are committed to the mediationprocess and want to achieve a negotiated resolu-tion—and “destabilizers”—members who want tofight to the end and attempt to present road-blocks to a negotiated resolution.

An important early goal of the mediator is toidentify the leader within each negotiating team.(That leader may or may not be the ultimatedecision maker.) Another early goal is to identifyany “destabilizers” and take affirmative steps tominimize their disruptive impact. This can be adifficult to achieve, particularly if the destabilizeris the decision maker, or if there are severaldestabilizers on each side of the table.

Some of the issues to be discussed between themediator and the parties in advance of the media-tion conference, including the following:

• What submissions will be necessary?• Will all submissions be exchanged or would

only provided to the mediator?• Who will attend the mediation conference?

Will experts attend? If so, what is their role?• Who must attend? What level of authority

must be in the room before proceeding tomediation?

• What will be required of the insurers? Whatlevel of insurance authority must be in theroom before proceeding to mediation? Istelephone availability acceptable under anycircumstances?

• What work needs to be completed by theparticipants for the mediation conference tobe meaningful?

• Should “small group” and “negotiationgroup” ex parte calls be conducted inadvance of the mediation?

D I S P U T E R E S O L U T I O N J O U R N A L

4 M A Y / J U L Y 2 0 0 7

From the perspective of the mediator, theseissues are best addressed in a pre-mediation con-ference or conference call. In Miami, Mr. Holt,commenting from the perspective of the media-tor, made the following points with respect toplanning for the mediation:

1. In large and complex cases, you must hold apre-mediation conference call; thereafter, act onwhat you learn.

2. Appreciate before the mediation conferencethat you have a large and/or complex dispute, andprepare, plan and structure the mediation accord-ingly.

3. Set the property expectations for the parties,beginning with the initial conference call.

4. Make sure that there is “grist for the mill.” All of the key participants must be presents for

a large, complex mediation. The scheduling andstructure of the mediation conference mustaddress and include all necessary parties, insur-ance representatives, consultants or experts asappropriate to the case and consistent with thewishes of the parties and their counsel.

It is also important that the mediator addressany fundamental problems or issues in advance ofthe mediation conference. Fundamental issuesinclude the following:

• the need for public-sector approval and rati-fication. These issues need to be addressedin advance of the mediation.

• the need to have insurance representativesphysically present.

• the presence of key decision-makers at themediation.

• the status of the expert and damage reports.If these have not yet been exchanged, themediator needs to address how can thisinformation can be effectively communicat-ed among the parties to allow meaningfuldialogue during the mediation.

If left unaddressed, such issues can createirreconcilable conflict that creates a barrier toearly, cost effective resolution of the case.

Counsel’s PerspectiveIn Miami, Mr. Bates offered comments from

the perspective of outside counsel on preparationfor the mediation conference. He described hisrole in the following terms:

As outside counsel, I view my role as leadingthe consensus-building process on behalf ofmy client, trying to draw out and fully under-stand the views of the members of my negoti-ating team, including my client, and to align-ing divergent interests that may exist. From abroader perspective, I try to understand where

the money is and the extent to which theresponsibility for the losses follows the abilityto pay. In general, Mr. Bates’s approach to the media-

tion process contains four basic themes: 1. Needs v. Wants: Participants often come to

the mediation process telling their counsel, “Thisis what I want.” The lead counsel must open thelines of communication to understand what eachof the participants “need,” not what each wants.

Needs include the financial ability to meaning-fully contribute to the solution. Needs must bethe focus of the dynamic within the negotiatingteam. Clients who use binding dispute resolutionprocesses, such as litigation or arbitration, aremotivated by the desire to get what they want. Inmediation, no one gets everything he wants.Clients choose mediation to have the disputequickly and efficiently resolved, eliminate businessrisk and minimize disruptive effect on businessoperations on financial terms that are acceptable.

2. Objective Case Assessment: An objective caseassessment is a critical element of preparing forthe mediation process. Clients want and need anobjective assessment of the reasonable range ofoutcomes from a litigation or arbitration process.Clients must understand the risks to their busi-ness if a negotiated solution is not achieved inmediation. These risks include, but are not limit-ed to, the following:

• an adverse ruling in litigation or arbitration,• the legal and expert costs associated with

adversary proceedings,• transaction costs (filing fees, arbitrator com-

pensation),• the cost of personnel used in the adversary

proceeding,• the effect that litigation can have on reputa-

tion, and • lost opportunity costs while being involved

in an adversary proceeding.It is often useful to develop a potential expo-

sure range. Mr. Bates says the illustration of astatistical bell-shaped curve is useful. The curvewill demonstrate the reasonable range of likelyfinancial outcomes. The parties must deductfrom any recovery the costs of achieving thoseoutcomes.

Once there is some agreement within a negoti-ating team on the reasonable range of net recov-ery, it becomes significantly easier to obtain con-sensus within the negotiating team.

3. Identify Impediments to Resolution: It is impor-tant to understand the impediments to resolu-tion. They include:

• vast differences of opinion as to the reason-


5D I S P U T E R E S O L U T I O N J O U R N A L

ably range of outcomes,• differences in the party’s aversion to risk,• “destabilizers” or other personality conflicts• disproportionate case knowledge or infor-

mation,• the absence of an important participant,• a dispositive legal issue,• a dispositive technical or engineering issue,• financial constraints with one or more par-

ticipants, and• insurance coverage issues.Counsel needs to assess these issues and take

steps to reduce or minimize the disruptive effecton the mediation process. This often includesmeeting with the stakeholders in advance of themediation and opening lines of communicationwith the mediator.

4. Prepare the Client for the Process: Even sophis-ticated clients sometimes have a misconception ofthe mediation process. They need to be remind-ed that the process is often slow and tedious. Theclient may not see the mediator for several hours.Clients may be offended by remarks made in theparties’ opening statements. Nevertheless, if theprocess is to be successful, the client needs to becommitted to it, allow it the time necessary towork, and remain positive and proactive. Counselmay need to remind the client to help the media-tor find a solution. Mediation is an unpredictableprocess. Sometimes, one or more parties mayneed to vent. However, counsel must remainfocused on the client’s objectives and assist theclient in managing its emotions.

The Mediation ConferenceAt the Miami Conference, Mr. Holt outlined

the initial considerations for the mediation con-ference, including logistics and presentations.

Logistics involve when, where, and how longthe mediation will be. (He stresses the need tomake sure that enough time is committed.) Alsoinvolved are the availability of support facilities,personnel and equipment, and the commitmentof people not to run out “early to catch a plane.”

As to presentations, the question is will therebe any or might they be divisive? If there will bepresentations, who will make them and how longwill they be? The mediator needs to get every-one’s input on these issues.

While the specifics of the mediation confer-ence varies in every mediation, the process cangenerally be broken down into the beginning, themiddle and the end.

Mr. Holt described the beginning as the“engagement” process. Each team member mustbecome engaged in the mediation for the processto be successful. This may involve venting and

drawing out the feelings and thoughts of eachmember of the team. The listening skills of themediator are of critical important at this stage.

The middle game inherently involves chal-lenges to the positions articulated by the parties.The style of the mediator varies greatly, as do themediation philosophies of different mediators.Some mediators are evaluative, while others arefacilitative. Some are aggressive while others gen-tly challenge a party’s stated position. The medi-ator’s goal is to have each party fully appreciateand evaluate the risks of not resolving the matterthrough mediation. A good mediator has manytools at his disposal to challenge the parties.

The mediation then moves to the “end game,”the meaningful engagement between the variousnegotiating teams. Mr. Holt offered the follow-ing comments from the perspective of the media-tor on the “end game.”

• Do not be too quick to declare impasse.• Do not confuse bluffing and negotiating tac-

tics with true impasse.• Let the parties decide what they need to

proceed further with the process.• Additional sessions are not uncommon in

early and/or complicated, multi-party medi-ations.

• Everything is subject to mediation, includingthe terms and conditions of the next session.

• In order for complicated deals to survive,some form of settlement memorandum mustbe documented and signed before mediationconference ends.

• Partial or “half a loaf” settlements can some-times facilitate or encourage complete reso-lutions.

• Do not let the progress that has beenachieved get lost.

ConclusionSuccessfully mediating a large, complex con-

struction case requires a commitment from eachparticipant in the process. Open communicationand understanding the needs of each personinvolved in the process is critical to achieving anegotiated solution. Counsel and the mediatoreach have very difficult jobs in finding commonal-ity within the negotiating teams, building consen-sus within the teams, and fully engaging all neces-sary stakeholders. Effective mediation, particular-ly with the myriad of participants in large con-struction projects, takes hard work by all involved.The mediation process is highly successful be-cause it meets the needs of the parties to achievean acceptable resolution of difficult issues whileminimizing the cost, time and disruptive effect ofresolving the underlying dispute. n

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