Steve Nelson on “Emerging Trends in ADR”

By Leslie King O’Neal

To watch the video presentation, click here: https://us02web.zoom.us/rec/share/ijm1qMUrwTyyRRReObvEF6MfKJauz3ZSLZESSgxCyN_-FjWldzmGlXP0e5mv27bS.p2gqlCfd_quK5Yyc?startTime=1746111560000 Password: &KMc$.Y3

Disputes Are Inevitable–Combat Is Optional

Citing the 1998 book authored by Ralph Hasson and Karl Slakeu, Controlling the Costs of Conflict, Steve explained the four main ways people deal with conflict:

• Avoid them--with contracts, systems and ADR tools
• Collaborate to resolve them–early (real time resolution), neutral evaluation, negotiation, mediation
• Resort to higher authority–DRB’s, arbitrations, trials
• Unilateral action/Power play–walk off the job, strike, stop payment, call the press . . . or worse

As parties move down the list, the cost goes up. The loss of control goes up. The relationship damage can become permanent. Hasson and Slakeu noted that most businesses and institutions systemically rely on the wrong options to deal with conflict. And this is costly. Dispute avoidance and early resolution are the most cost-efficient ways to deal with disputes. The best dispute is the one that never happens!

AI Is Everyone’s Assistant Now

AI is another emerging trend in ADR. As AI tools continue to evolve and new ones are developed, these tools enhance and streamline ADR on and off the jobsite. AI tools can search contracts for “concepts,” highlighting risks and suggesting alternative language or improvements. Construction technology also helps parties pinpoint and avoid risks, for example:

• BIM models note design conflicts before construction begins.
• Project information management tools (e.g. ProCore, AutoDesk) store all project communications. AI can use “sentiment analysis” to detect potential disputes through the “heat” of daily communications.
• Smart contracts with block chain features trigger alerts or escrow payments if schedule thresholds are missed.
• Digital twins can simulate the project timeline and visualize the impacts of delays or resequencing.

To learn more about AI & construction technology see Technology in Construction Law published by the ABA Forum on Construction Law https://theconstructionadrtoolbox.com/recommendations/

Everything Old Is New Again

Some dispute avoidance and early resolution ideas from the 1970’s and 1980’s are coming back, just like classic rock & roll. These include “Partnering” and “Dispute Review Boards” and some new variations on those themes–ombuds, standing neutrals, real time neutral opinions and early neutral evaluations.

• Partnering https://partneringinstitute.org/page-18069 is an agreement for structured, pre-project collaboration that brings the design and construction teams together before and during the project. It’s goal setting, communication channels and agreed dispute escalation ladders. The U.S. Army Corps of Engineers pioneered it. Many state transportation departments required it. It worked–there were dramatic drops in claims and change orders. Partnering still works in these sectors. Unfortunately, sometimes the “partnering” concept is given only lip service and isn’t effective.
• Dispute Review Boardshttps://www.drb.org/ are set up when the project starts. A group of three neutral subject matter experts stays engaged throughout the project, making periodic site visits and make decisions to prevent conflicts from becoming claims. The decisions can be interim and binding or non-binding. A high percentage of disputes on DRB projects are resolved without litigation. See post: https://theconstructionadrtoolbox.com/2025/03/dispute-review-boards-resolve-disputes-on-the-site/
• Standing Neutrals https://www.vestedway.com/wp-content/uploads/2024/05/Implementing-the-Standing-Neutral.pdf Standing neutrals play a similar role to a DRB. Projects such as the Denver International Airport and the California High-Speed Rail have embedded neutrals who can give informal advisory opinions within 48-72 hours.
• Ombuds are a model borrowed from employment disputes. They are embedded, confidential early listeners. They don’t rule on anything, but they catch behavior or communication problems before they turn into termination letters. https://natlawreview.com/article/ofccp-s-ombuds-service-now-open-business
• Neutral Evaluations can be helpful in mediation where the parties are far apart on the scope of repair or cost to complete or on a critical legal issue. Having a respected neutral give a summary non-binding evaluation can provide the impetus to close the gap and reach settlement. A recent post discussed neutral evaluations: posthttps://theconstructionadrtoolbox.com/2024/11/neutral-evaluation-is-a-useful-tool-in-settlement/

Put Your Best Face Forward–Virtually

Use Video for Opening Statement

Steve promotes the idea of recording opening presentations in advance. Make a 5-to-10-minute summary of your position, perhaps with visuals. Send it to the mediator for review before the mediation. This gives the mediator time to react and advise. Perhaps the mediator will warn you: “This feels like a sharp stick. Don’t poke them with it.” Steve believes videos will get a wider audience from the opposition and will be given more study than an opening on mediation day. This helps set the stage for resolution.

The “Will Work for Food” Mission

Hunger Facts in the USA

 47 million people in the United States are food insecure. Food insecurity is an official term describing when people don’t have enough to eat and don’t know where their next meal will come from. 100% of U.S. counties have food insecurity. 14 million children in the United States are food insecure.

Food Banks

• East Spring Branch Food Pantry: Houston, Texas. Our Mission – To provide food free of cost to families in urgent need, who reside in zip codes 77024, 77040, 77041, 77043, 77055, 77080, 77091 or 77092; the pantry offers these services without regard to a person’s race, religion or national origin.
• Blessings in a Backpack: This organization helps feeds school children across the US, and is partnering with districts that have summer feeding programs to extend services while schools are shut down.
• Convoy of Hope: Delivering meals through partners, churches and community organizations across the US. They have delivered 150 million meals and counting in response to the pandemic.
• Feeding America: With a network of 200 food banks across the US, this organization is helping food banks support communities impacted by the pandemic.
• FoodCorps: Working with school districts to ensure school meal sites can feed students who are out of school as well as their families.
• Christian Service Center for the Homeless | Orlando Day Center: Since 1975, the Daily Bread program has been serving a free, nourishing, noontime meal for families and individuals in the community six days a week for the most at-risk population and help struggling people get needed referrals to other programs and partner agencies. 
• Food Pantries.org: Use this national database to locate food pantries in local communities that you can contribute to.
• Little Free Pantry: This organization is standing ready across the US, giving 24-hour neighborhood access to food and other necessities.

Please consider donating to one of these organizations. Any amount will help!