By Leslie King O’Neal
The Alabama Bar Construction Section 12th Annual Construction Law Summit is in the books. I was pleased and honored to be on a panel with my old friends (and experienced arbitrators), Allen Gibson[i] and Harper Heckman.[ii] We discussed a variety of common “sticky” issues that we’ve seen in arbitrations—everything from AI to functos officio.[iii]
Dealing with “Sticky” Issues in Arbitration
Harper Heckman led off the presentation with a discussion of motions practice in arbitration, interactions with opposing counsel and the arbitration panel, tips on claim presentation (exhibits, timelines, compilations), direct and cross examination and damages.
Key points: (1) the best direct examinations are three-way conversations between the lawyer, the witness and the panel. Introduce the witness’s topics, then go into detail and finally do a summary. Mock exams are helpful to prevent witness timidity or verbosity. Avoid weak, redundant or “cameo” witnesses. (2) Have a written plan for cross examination. Be crisp, don’t meander. Get what you can and get out—don’t simply rehash the direct examination. You don’t have to cross-examine every witness. (3) Damages are the most important part of the case but sometimes seem like an afterthought. Introduce damages early with each witness. Summarize the damages in a demonstrative exhibit with annotations to exhibits and witness testimony. Use a score card of claims, damages and defenses to assist the arbitrators to assist the arbitrators.
Allen Gibson focused on issues such as late disclosure of witnesses, creating conflict issues for arbitrators, functus officio (the end of the arbitrator’s authority), in camera privilege review, witness unavailability, and arbitrator legal research requests.
Key points: (1) disclose experts and witnesses early to prevent last-minute conflicts from derailing the hearing. (2) Functus Officio means that after the arbitrators issue a final award, there are few grounds to correct it. There are no motions for reconsideration in arbitration. (3) In camera review may require a separate appointed arbitrator or applying to the court. (4) Witness unavailability is easier to manage with today’s technology. There are many options such as videoconferencing and depositions as well as witness statements. Also, arbitrators frequently allow witnesses to appear out of order.
Leslie O’Neal ended the presentation with a discussion about AI use in arbitration, noting that AI is everywhere and we can’t avoid it. Neither the AAA nor the JAMS rules specifically address AI use. The Silicon Valley Arbitration & Mediation Center (SVAMC) and Chartered Institute of Arbitrators (CIArb) have published guidelines and sample procedural orders for AI use in arbitration.[iv] Discussing AI use in the preliminary conference and including AI guidelines in the scheduling order are good practices.
Key Points: (1) AAA recently introduced an AI Arbitrator for documents-only construction disputes. (2) AAA has also developed many AI tools for lawyers and arbitrators to use in arbitration, such as Integra, Clausebuider AI, AAA Chatbot Case Prep & Presentation and AI Panelist Search. [v] (3) The ABA International Section and New York Law School presented hands-on training about AI evidence called TechCred.[vi] Another training is scheduled for Fall 2026.
See recent post on AI use in arbitration:
[i] https://www.womblebonddickinson.com/us/people/allen-gibson
[ii] https://www.maynardnexsen.com/professionals-harper-heckman
[iii] https://www.linkedin.com/in/leslie-king-o-neal-b31630a0/
[iv] The SVAMC Guidelines were published on April 30, 2024. https://svamc.org. They include a model clause to use in procedural orders. The CIARB Guideline was published in March, 2025. https://www.ciarb.org/ The Guideline’s appendices include a form agreement on using AI in arbitration and form procedural orders on using AI in arbitration.
[v]https://www.adr.org/ai-tools-and-technology/
[vi] Here is information about the 2025 TechCred training: https://events.americanbar.org/event/e033a9a8-460f-4635-9dc7-67942c7ff25b/summary
Read the TechCred substack for more information about TechCred: https://techcred.substack.com/