1. ABA Dispute Resolution Section Women in Dispute Resolution December 2014 Dispute Boards: An Introduction Deborah Bovarnick Mastin Law Office of Deborah Mastin, PA Miami, FL

2. Stuff Happens – How do your clients… manage unplanned events during the performance of their projects? mitigate the impact of unplanned events in real time at the project level?

3. Contractual structure for dispute avoidance and mitigation using independent panel of impartial professionals in real time Begins at the inception of project and operates continuously during performance Can transform into dispute resolution (like arbitration), if dispute avoidance fails A/K/A Dispute Review Board, Dispute Resolution Board, Dispute Avoidance Board, DRB What is a Dispute Board? 3

4. Why have a Dispute Board? Mitigates impacts of activities not yet performed for the best interest of the project Disputes don’t aggregate or compound Validates decisions to compromise Process cost dramatically lower 4

5. What Makes A Panel Effective? People – Trust and respect for Panel Process – Professional, problem-solving, confidential

6. People: Selection Criteria for Panel Appropriate professional experience Ethics – Disclose prior relationships with parties – Preclude new relationships during project Available, interested, neutral, unbiased Trained in Dispute Board practices Mediators and arbitrators Industry professionals and lawyers

7. Process: Creating the Dispute Board Specification within owner-contractor Agreement – Establish procedures Engagement agreement between each Panel member, owner and contractor (“3-Party Agreement”) – Establish fees, release of liability

8. Process: Objectives of Specification Dispute avoidance Dispute mitigation Facilitation & communication Not technical advisors or mediators Dispute resolution

9. Process: Training the Project Team to Succeed At first meeting establish expectations of panel operations Regular site visit facilitation meetings – monitor progress of project – dispute prevention and mitigation – builds confidence and trust – Ex parte and caucus prohibited

10. Process: Regular Periodic Meetings Confidential facilitation - the real value Monthly meetings typical = prerequisite to claims Review schedule and discuss potential disruptions Explore in detail the “Why?” behind the numbers Invite all stakeholders

11. Process: Informal Guidance Before costs incurred Limited presentations Early “quick read” Oral guidance offered by Panel de novo “formal” hearing if not accepted

12. Process: Formal Proceedings Inquisitorial Presentations by parties not sworn Results in non-binding or binding written report Admissible or Inadmissible?

13. Who is Using Dispute Boards? 1970-2010 over 2200 projects > $150B USA Infrastructure, tunnels, bridges, roads, dams, airports, seaports, public transit, hospitals, universities, Panama Canal World Bank, FIDIC, ConsensusDocs Real estate development, IP, IT, Pharma Complex commercial “too big to fail” 13

14. Since 1993 UW used Dispute Boards In more than 40 contracts Dispute Board cost < $50K each Total project value > $4 Billion only 2 formal hearings in 20 years University of Washington Experience: 14

15. My First 2 Dispute Boards Arsht Performing Arts Center, Miami, Florida Miami International Airport North Terminal Development Project 15

16. Arsht Performing Arts Center, Miami 16

17. Miami International Airport North 17

18. Bring Value to Your Client Looks forward, not backward Opportunity to modify future actions Low cost with high effectiveness Subsequent mediation & arbitration options preserved

19. Reference Material Dispute Review Board Foundation: www.drb.org www.drb.org ConsensusDocs: www.consensusdocs.orgwww.consensusdocs.org American Arbitration Association: www.adr.org www.adr.org International Chamber of Commerce: www.iccwbo.org www.iccwbo.org International Institute of Conflict Prevention and Resolution: www.cpradr.orgwww.cpradr.org Construction ADR, ABA Forum on the Construction Industry 19

20. Try it you’ll like it Thank you Deborah Bovarnick Mastin deborahmastin@gmail.com. 20