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⁴⁰¹ In fact, because of the surveys, it was learned that several DOTs believed they were not precluded from using arbitration if they chose to do so, notwithstanding their standard specifications.

⁴⁰² Several DOTs had their contracting officers and lawyers respond separately from the DOT engineering/construction departments.

As indicated in the state-by-state review in Chapter IV, many DOTs are not authorized to use DRBs or, if they are authorized, have not used them. Answers from those survey respondents who actually used DRBs indicate that standing DRBs are typically used far more than ad hoc DRBs, even though many of the DOTs have used both. Stated differently, over 46% of the respondents whose DOTs use DRBs answered that their DOT rarely, if ever, uses an ad hoc DRB.

With respect to whether the DRB process was considered effective in resolving construction disputes, the answers for both standing and ad hoc DRBs were about the same. Approximately 50% of the respondents answered that DRBs were very effective, with 20% finding that they were typically ineffective. Respondents were also asked about how often their DOT and the contractor voluntarily complied with nonbinding recommendations from either a standing or ad hoc DRB. Of those respondents who had actually received recommendations from a DRB, the vast majority (67%) said that there was frequent compliance, while less than 10% said that compliance was infrequent.

Respondents were given an opportunity to select one answer to a question that asked about the typical reason parties do not comply with nonbinding DRB recommendations. The two top answers received virtually the same number of votes – a party believed the recommendation was inconsistent with the contract or a party believed the recommendation was inconsistent with the facts. A small number answered that the reason for not complying was that the DRB members did not understand the case. No respondent answered that noncompliance was because the party believed the DRB was biased against it or that the other party was being unreasonable.

Only a handful of respondents said that their DOTs used nonbinding arbitration, with most of them answering that they used the process for determining disputes as to both entitlement and quantum. As to whether the parties complied with the nonbinding ruling, the respondents were basically evenly split—about half answered that the parties frequently complied, and about half answered that the parties infrequently complied.

The respondents’ comments about the nonbinding processes discussed above are instructive. The feedback on DRBs was somewhat mixed. Those who found the DRB experience beneficial for resolving disputes stated that:

• The standing DRB is more of a partnering process. It allows discussions about current issues and often the parties can get an indication of how a third party would see the dispute. Advisory opinions on likely entitlement are very effective in getting the owner/contractor moving on settlements.
• “The nonbinding DRB has been effective because it gave an objective viewpoint on the matters under review. Too often the owner may get so focused on their position, it is difficult to be objective and see the other side. Similarly, the DRB can help the contractor see that the owner’s initial position is more reasonable than the contractor initially thought.”

Those who had issues with the DRB process stated the following:

• “In my experience, members of DRBs do not adequately consider the contract when making decisions, but, rather, base their findings on emotion and the perception that contractors have lost money, so should be compensated. Their reasonings for the decisions that they make are not logical. This process is a money-making gimmick for the DRB members. Our DOT no longer uses this process for these reasons.”
• “There are concerns with the time and dollar costs associated with standing DRBs.”

In terms of how to improve the DRB process, two specific comments were raised about the process of selecting and educating DRB members. One remark was from a respondent whose DOT occasionally uses DRBs (i.e., approximately 25% of the time). This respondent stated that in its experience: (a) the DRB has been effective only half of the time in resolving disputes; and (b) the parties infrequently abide by nonbinding recommendations. It attributed this to the DRB’s recommendations often being inconsistent with the factual evidence and suggested that: “DRB members should be required to take a reoccurring or continuing education credits to qualify to be a DRB member.”

Another respondent whose DOT rarely uses DRBs and has found them to be typically ineffective stated that: “There needs to be a public, transparent process for selecting panel members. Also, having enough panelists to select is a problem related to both avoiding conflicts and willingness to be assigned for the life of a rural project.” Similarly, a respondent whose DOT occasionally uses DRBs said, “I’m really lukewarm on the process. Some advantages and they aren’t the worst thing. But not sure how much they really have contributed compared to the effort.” Finally, a respondent whose DOT has extensively used partnering and not used DRBs said as to both processes, “I’m really looking for some measurable data as to whether using these approaches has truly positive results on disputes. I just don’t think the juice is worth the squeeze on either of them.”

As for mediation, the comments were consistent with the positive overall experience described above, although there were some caveats. For example:

• “Encouraging parties to early mediation seems to be effective.”
• “It can be very beneficial.”
• “Mediation works well for us. After about 15 years of use we have only had one dispute go to litigation.”
• “I feel that mediation can work for smaller contractors who want to settle disputes for minimal cost. Larger contractors will tend to not settle with mediation and will push for other resolution methods, like arbitration, after mediation fails.”
• “DOTs should carefully consider the selection of a knowledgeable mediator.”

One respondent was particularly critical of mediation, stating that: “We have found that mediation/mediators do not necessarily look for a fair resolution, rather a resolution at all costs. In recent years this seems like a waste of time. If we are close enough to be willing to compromise, we usually can get to a resolution without the mediation.” Another was lukewarm, stating: “Mediators just want to split the baby in half. I get it. But

sometimes you just want to get a result one way or the other, so you either know what you are doing is right or that you have to change your approach.”

As noted above, approximately 30% of the respondents answered that their DOTs had experience in using independent experts. One respondent said that its DOT did not use them, as the DOT relied upon experts internal to the DOT. Another stated that the challenge with using independent experts is finding one upon whom both parties can agree. As to the effectiveness of independent experts, there was only a single comment, which said: “My experience is that independent experts are easily countered by another independent expert costing both time and money to both parties. Most disputes lie in a gray area, with making it easy for ‘Experts’ to debate both vantage points.” Several other respondents likely agreed with this sentiment, as the overall DOT respondents ranked independent experts as one of the least effective of the available dispute resolution processes.

Finally, there was a poignant comment from a respondent who answered that its DOT has not used any formal nonbinding dispute resolution processes in the past 10 years. It said: “Our experience has been when you work with the contractors and establish a mutually respectful relationship disputes can be worked out before formal litigation occurs.”

2. Binding Dispute Resolution Processes

Although the survey asked questions about three binding dispute resolution processes (i.e., arbitration, litigation, and binding DRBs), the focus of the survey was arbitration. As discussed in Chapters IV and V, only 16 DOTs have the authority to use arbitration to resolve their construction disputes and/or have used it. Of those, eight (California, Connecticut, Florida, Louisiana, Maine, Missouri, New Mexico, and Ohio) responded to the survey and post-survey calls and three (Arizona, Oklahoma, and North Dakota) provided comments about its arbitration process during a telephone interview. As a result, for the most part the responses to the survey’s questions were derived from these 11 DOTs.

In response to the question asking for the reasons why the DOT agrees to use arbitration, the respondents had the opportunity to select multiple answers. The answers which garnered the most votes were that: (a) “our DOT believes that arbitration will be faster than litigation;” and (b) “our DOT believes that arbitration will better preserve the relationship with the contractor than litigation.” These responses were closely followed by one that the DOT uses arbitration because it believes that if the parties are required to arbitrate there is a higher likelihood the case will settle. A few respondents chose the answers that (1) the DOT prefers having arbitrators rather than a judge/jury and (2) arbitration will be less expensive than litigation.

In response to a question asking for the reasons why the DOT might not agree to arbitrate even though it has the authority, the respondents likewise had the opportunity to select multiple answers. The responses garnering the most votes were that: (a) the DOT has a preference for litigation-type discovery and pretrial motions; and (b) arbitrators will not abide by the contract. One respondent stated: “We don’t need it we resolve without litigation.” Another commented: “We’d most likely do mediation before going to arbitration.” Yet another noted that the DOT generally only agrees to arbitrate if the contractor asks and the value of the claim is less than a range of $200,000 to $250,000.

Respondents were asked about their recent arbitration experiences and related level of satisfaction. Most answered that they were satisfied with the process, primarily basing this on: (a) the efficiency of the process; and (b) the process taking a reasonable amount of time to get to a final result. Some attributed their views to the arbitrators having an understanding of the case. A few respondents answered that they were unsatisfied or extremely unsatisfied with the process. The most common answer for explaining dissatisfaction was that the award was inconsistent with the contract, although a few also viewed the award as being inconsistent with the factual evidence. In terms of whether the awards were fair, approximately half of the respondents thought they were typically fair, another half felt they were fair around half the time, and one respondent felt that the awards were typically unfair. Only one respondent felt that an award was unfair because the arbitrators were biased in favor of the contractor, and that was attributed to the contractor’s party-appointed arbitrator as being a “dynamic, pushy” person who dominated the hearings.

The survey asked what fact patterns or other issues might cause arbitrators to deviate from settled law and contract terms. The overwhelming majority stated that they had not experienced arbitrators doing this. For those who had, the most common answer was that the arbitrators believed that it would be unfair to enforce the law or the contract and that arbitrators have sympathy with the contractor’s position.

Several other observations about the arbitration process itself are worthy of note, particularly given that these were offered by respondents who had actual experience with the arbitration process:

• Virtually every respondent found that the discovery process in their DOT’s recent arbitration was appropriate and that the discovery process did not impact the overall results.
• There were mixed answers on the selection process for arbitrators, with only a handful stating that the process was very good, and more respondents answering that it was only good, fair, or poor. The overwhelming reason for rating the process no better than “good” was the view that the arbitrator pool was deficient in terms of experience.
• Most respondents found that the level of proof to support damages claims was “substantially” lower than what would be required in court, with some believing that it was only “slightly” lower. Only one respondent stated that it was the same level of proof.
• While most respondents answered that virtually all of the arbitrations initiated over the past 10 years resulted in an arbitration award, several noted that the arbitrations are resolved (i.e., the case settled) before the issuance of an award

more than half the time. This was confirmed in several of the telephone interviews as well.

• In terms of whether arbitrators are better capable of deciding liability or quantum of damages, the results were evenly divided between liability only and both liability and quantum. Nobody concluded that the arbitrators were better at deciding quantum only. However, one respondent said, “Arbitrators seem to award contractors more than they should have, but I realize that is part of the deal.”

The survey did not inquire extensively into the use of binding DRBs. Only six respondents answered that their DOT uses them, with: (a) one using them virtually always; (b) one occasionally (i.e., less than 25% of the time); and (c) four rarely, if ever. In terms of effectiveness, three of the respondents found binding DRBs very effective, one effective half the time, and one typically ineffective.

As discussed in Chapter V, most DOTs have monetary limits on what disputes are arbitrable. The survey asked respondents to identify what those limits should be for both arbitration and binding DRBs. Nineteen respondents answered this question, and the results were wide-ranging: (a) no limits at all (42%); (b) up to $20 million (11%); (c) up to $5 million (20%); (d) up to $1 million (16%); and (e) up to $500,000 (11%). This is particularly surprising given that respondents from DOTs that have monetary limits on arbitrations advocated for amounts greater than those limits.

The survey did not generally ask about litigation experience. However, one important question asked respondents to choose whether litigation, arbitration, or a binding DRB was the most effective process for the final resolution of disputes. All respondents answered this question, with: (a) 63% choosing litigation; (b) 22% binding DRB; and (c) 15% arbitration. We note that these results may have been affected by the fact that only seven of the DOTs responding to the survey use arbitration.

The comments about the binding processes, particularly arbitration, offer some perspectives about what the respondents were thinking in answering the questions. For example, in terms of the quality of the arbitrators and having concerns about that in using arbitration, there were the following comments:

• “The DOT’s preferred arbitrators weren’t available for our arbitrations.”
• “It is very difficult to find a qualified arbitrator that does not have a conflict.”
• “Conflicts of interest were often present and the process became too long for selection.”
• “Quality of the arbitrators is key, as is their objectivity and neutrality. We have had issues with party-appointed arbitrators, both our own as well as the contractor’s, because they feel they have to support our positions instead of just listening to the evidence and reading the contract.”

In terms of considering whether the arbitration process was satisfactory, the following comments were made:

• “The panel did not have sufficient understanding of the legal consequences for various contract provisions. Split the baby instead of finding entitlement and proof of damages.”
• “There is a lot of gray area in these disputes … otherwise we would resolve them without arbitration. For the most part, panels get the decision right, even if there are a few that we think are wrong. We aren’t unbiased.”
• With respect to awards that deviated from the law or contract: (a) this happens where there is a “general split of damages to appease both parties;” and (b) the arbitrators do not abide “by the General Provisions for the sake of fairness.”
• “The issue I have with arbitration, at least the way it’s been done in our state, is that there is no ability to present a position, or a story, to the arbitrator. This all must be done with carefully worded questions, which is very frustrating.”

B. Industry Perspectives

Thirty-eight (38) individuals participated in the industry survey and came from primarily the following categories: (a) outside/in-house lawyers working for contractors (44%); (b) outside lawyers and consultants working for DOTs (19%); and (c) dispute neutrals such as mediators, arbitrators, and DRB members (59%). While the names of the respondents cannot be shared because of confidentiality, suffice it to say that they are virtually all well-known and highly respected within their fields. Many of the lawyers are fellows in the American College of Construction Lawyers (ACCL) and/or industry leaders in terms of representing contractors and owners on transportation projects or serving as neutrals. Many of those who identified as being dispute neutrals are leaders in the DRBF and/or among the “go to” mediators/arbitrators for construction disputes. Importantly, the collective experience of this group includes having worked for or against 39 DOTs.

As expected, the individuals have a wide range of experience with construction disputes involving DOTs or other transportation agencies (e.g., transit agencies).⁴⁰³ For those respondents who have served as dispute neutrals, almost 25% have done so on 10 or more disputes, and half of them have done so on more than 20 disputes. For those respondents who have represented either an owner or contractor in mediation, arbitration, litigation, or DRB hearings, the numbers were even higher. have done so on 10 or more disputes, while over 30% have represented their clients on more than 20 disputes. Almost 75% of these respondents have represented their clients on six or more disputes.

1. Nonbinding Processes

The nonbinding processes considered to be the most effective by the industry group as a whole were standing DRBs and

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⁴⁰³ Because the survey asked about experiences with both DOT and other transportation agencies, we will refer to those entities for this section as “owners.” Importantly, the survey specifically asked whether any answers materially changed if the dispute involved a transportation agency other than a DOT and, aside from one, every respondent answered that it would not.

mediation, with the majority citing mediation. Facilitated partnering was not considered effective; only 5% of the respondents chose it as being the most effective process while almost 30% answered that it was the least effective. These opinions differ from the DOT survey responses, which had facilitated partnering as a reasonably close second choice to mediation for effectiveness, and which did not highly rank DRBs.⁴⁰⁴ Looking at those respondents who do not typically serve on DRBs, mediation was considered to be most effective by a substantial margin.

With respect to the survey questions about the effectiveness of standing DRBs, the range of views was substantial. One-third concluded that the standing DRB was typically very effective while almost 25% found it to be typically ineffective.⁴⁰⁵ The balance found it effective about half of the time. Of the 14 respondents that answered the question about the effectiveness of an ad hoc DRB, only 14% found this DRB was very effective; 36% found the ad hoc DRB to be typically ineffective and the balance said it was effective about half the time.

Respondents were also asked how often their DOT and the contractor voluntarily complied with nonbinding recommendations from either a standing or ad hoc DRB. Of those respondents who had received recommendations from a DRB, 42% said that there was frequent compliance, while 21% said that compliance was infrequent. This is significantly different from the DOT surveys, where the frequency of compliance was determined to be substantially higher.

Respondents were given an opportunity to choose one answer to a question about the typical reason parties do not comply with nonbinding DRB recommendations. As with the results from the DOT survey, the two top answers were that a party believed the recommendation was inconsistent with the contract or a party believed the recommendation was inconsistent with the facts. Contractual inconsistency received a few more votes than factual inconsistency. Interestingly, whereas no DOT respondent answered that the reason for not complying was because a party thought the other party was being unreasonable, almost 17% of the industry group cited this as one of their answers.

Nonbinding arbitrations are not commonly used. Of the entire group of industry respondents, less than 20% have represented or assisted a party on a project that used nonbinding arbitration. Fifty percent used the process for determining disputes as to both entitlement and quantum, while 33% used it to decide only entitlement. Interestingly, the balance of the group used it to decide quantum disputes. As to whether the parties complied with the nonbinding ruling, about half answered that the parties frequently complied, with only a small fraction (6%) answering that the parties infrequently complied. Three respondents provided their own reasons for this:

• “Owners are waiting to resolve issues until the end of the project.”
• “One of the parties needs a binding decision to achieve political support within their organization.”
• “One of the parties is wedded to their position or is arrogant about their odds of ultimately prevailing.”

In addition to the preceding comments, the industry respondents provided several other instructive observations about the nonbinding processes discussed above. As with the DOT comments, industry’s comments on DRBs were somewhat mixed. Those who found the DRB experience beneficial for resolving disputes stated that:

• [It is] “An excellent methodology of dispute resolution and avoidance and the most cost-effective method.”
• “Mega projects should require a standing DRB or disputes will aggregate to a level making ADR much more difficult.”
• “The objectives of the DRB process is different from other ADR processes. The DRB process encourages dispute avoidance. Hence, if the DRB process is implemented successfully there is no need for formal hearings or other ADR processes.”
• “DRBs differ in two important ways: (1) they work in real time, having built up trust with the parties, rather than after-the-fact; (2) the parties still control the outcome/settlement—they are not told what the answer is (as DRB is nonbinding).”

There were, however, several negative comments about DRBs from the industry respondents, particularly in terms of the DRB process becoming too formal:

• “DRBs are often not used the way they were intended. The process is not efficient or expedited and instead turn into a mini arbitration. Sometimes the DRBs do not make themselves sufficiently available or allow one party to game the process. Finally, I am troubled when the DOT is permitted to ignore the DRB recommendation.”
• “In practice, DRBs are too akin to arbitration to be effective in resolving disputes. Takes too long to get to the hearing, too much information is required, recommendations take too long to be provided, and recommendations often do not provide guidance. To be more effective, the DRB process should look more like a facilitated/evaluative mediation happening in real time.”
• “DRBs seem skewed to getting the Contractor $.”

One particularly lengthy comment is worthy of specific mention, as it was written by an individual who not only was instrumental in helping create and advance the DRB process, but who has written and lectured extensively on the subject and served on DRBs for decades:

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⁴⁰⁴ The industry responses on DRBs’ effectiveness in comparison to the DOT responses may be skewed by the fact that a large number of the industry participants are heavily vested in serving on DRBs and thus have considerable experience to draw upon.

⁴⁰⁵ It should be noted that a bit more than half of the group responded to questions about standing DRBs, presumably because the remainder did not have standing and/or ad hoc DRB experience.

The respondents also offered some suggestions on how to improve the DRB process generally and on DOT projects in particular. Several of the comments addressed the need to require regular meetings (i.e., using standing DRBs instead of ad hoc DRBs) as a means of keeping the DRB proactive and engaged in dispute avoidance. Consistent with this view, one respondent stated, “When the DRB is lax about meeting or don’t put value in the process it does not work.”

With respect to mediation, most of the comments were positive, citing that: “next to an agreement reached by the parties, mediation is the most cost-effective tool;” and mediation helps the parties “face realities and encourage them to consider all aspects and compromise and accept an outcome that is in the interest of the project.” Keys to mediation effectiveness are: (a) when “both parties are truly committed to a settlement—not just to use the process to support their position;” and (b) the use of a high-quality mediator, particularly one that understands the technical issues involved in the construction process. One litigator who has vast experience representing construction contractors on major construction claims against transportation agencies stated that: “Mediation can be very effective in resolving disputes – particularly when there is a threat of a DRB looming or the public agency wishes to avoid publicity over the matter.”

There were a few comments from those who were less positive about mediation’s overall effectiveness on DOT projects:

• “DOTs are often influenced by politics and do not have the same incentives to settle cases.”
• “I find DOTs do not necessarily have the same incentives to settle and resist mediator advice.”
• “Most mediations on DOT projects start as an initial step in the process, as a pre-condition to arbitration or litigation. Mediation in these circumstances is difficult, but a good mediator can use this initial step to either settle the case or initiate a process that can make dispute resolution more efficient, either by structuring information exchange and focusing the claims, or by remaining involved to see if the case can be resolved later in the process. It is incumbent on the parties or mediators, however, to look at ways to stay involved and continue assisting the parties after the initial declaration of impasse.”

As for independent experts, the industry comments were similar to those shared by the DOTs, and they generally were not positive:

• “They are too focused on rendering an opinion often based on incomplete evidence that their results are not respected.”
• “The quality of independent experts varies dramatically. The utility of the experts depends in large part on the quality of information provided by counsel or reviewed or demanded by the expert. Too many independent experts do not appear to be independent and instead appear to be advocates that ignore or reject any effort at objectivity.”
• “Unless the expert is vetted and approved by both parties the expert will not be perceived as independent.”
• Some experts “come in with idea of basically splitting the difference which is not good policy.”

One respondent noted that: “There is a place for independent experts in the DRB and other hearing process, but the parties must be willing to roll up their sleeves and understand/endorse the experts.” Consistent with the comments, a fairly large number of industry respondents ranked the use of independent experts as one of the least effective nonbinding dispute resolution options.

A litigator who represents contractors on national construction disputes proposed another nonbinding process. This litigator stated that over the past decade, for major disputes (i.e., between $100-700 million), “a nonbinding evaluator process has been very successful.”

2. Binding Dispute Resolution Processes

As with the DOT survey, industry respondents were asked to choose whether litigation, arbitration, or a binding DRB was the most effective process for the final resolution of disputes. All 38 respondents answered this question, with: (a) 24% choosing litigation; (b) 29% favoring a binding DRB; and (c) 47% selecting arbitration. This is significantly different from the DOT responses, which favored litigation by a substantial amount.

A review of individual respondent answers provides an interesting perspective. Those who chose binding DRBs included a few (but not all) of the individuals who make their living doing DRBs, as well as several prominent in-house and outside construction lawyers who represent contractors. Those who chose litigation included several lawyers who represent transportation owners in litigation. While this is not surprising, it was interesting to see that several individuals who typically represent transportation owners chose arbitration. In response to the question about whether there should be monetary limits for arbitrations, 80% of the respondents said there should be no limits. The remainder of the respondents principally advocated for limits of either $500,000 or $1 million.

Twenty-four respondents represented transportation owners and/or contractors in disputes. The survey asked for their opinions about how they viewed the process. One question was how often they thought the awards were typically fair. An overwhelming 80% answered that the awards were typically fair. Another 15% answered that they were fair about half the time. Only 5% of the respondents noted that the awards were typically unfair. In terms of why a respondent might have considered an

award unfair, the answers were almost evenly distributed among three options: (a) the award was inconsistent with the facts; (b) the award was inconsistent with the contract; and (c) the arbitrators did not understand the case.

This group of respondents was also asked to evaluate whether the parties whom they represented or assisted were satisfied or dissatisfied with the arbitration process. Respondents had the opportunity to provide multiple answers. The three top answers mirrored the answers for unfairness of the arbitration award (i.e., (a) through (c) of the preceding paragraph). Stated differently, if a party is satisfied that the award is consistent with the fact and contract and/or that the arbitrator understood the case, that party is satisfied. If any one of those answers changes, then it is dissatisfied. All three factors received about the same number of votes. As to parties being satisfied, a significant number of respondents cited the efficiency of the process and reduced time to get to a final result. For those respondents who discussed dissatisfaction with the process, 25% answered that the process took too long to get to a final result as one of the reasons. One respondent cited as a reason that the arbitrator admitted material evidence that would not have been admitted in court.

The survey asked those representing transportation owners and contractors for feedback about the arbitrator selection process. Forty-two percent rated the process excellent or very good and only 11% rated the process fair or poor. Those who rated the process good, fair, or poor were asked for their reasons. The unanimous reason was that the arbitrator pool was deficient in terms of experience. As with the DOT respondents, industry respondents offered numerous comments about the arbitrator selection process, with virtually all of them being positive. Here are some of those responses:

• “The quality and knowledge of the arbitrator was apparent in the awards.”
• “Parties selected arbitrators who they had confidence in.”
• “The selection process was designed to develop a qualified panel which led to successful arbitration, irrespective of the result.”

One respondent who expressed dissatisfaction with the arbitration process on a matter stated that it was: “Because the arbitrators’ experience was not aligned with the needs of the case.”

Aside from how the arbitrators performed, the respondents also commented on the importance of arbitrator selection in general for successful arbitrations. For example:

• “If the selection process allows for selection of experienced and qualified arbitrators, the result will almost certainly be better.”
• “Having an experienced and impartial arbitration panel is essential to an outcome that both parties can accept.”
• “The selection process is crucial to finding actually neutral and nonbiased decisionmakers as opposed to arbitrators with preconceived views.”
• “Arbitrators bring unique perspectives to the dispute.”
• “Good understanding of the case is based on good arbitrators. Also control of the proceedings needs good arbitrators.”
• “Decision may hinge on ability of a panelist to unduly control or influence the decision-making.”

Those representing transportation owners and contractors were also asked whether they had experienced an arbitration where the arbitrators deviated from settled law and contract terms. Half the group said it had not experienced this. For those that had, the overwhelming answer was that it was because enforcement of the settled law would have been unfair. The next highest response (a distant second) was that the arbitrators did not like a party’s conduct. Only two respondents answered that it was because the arbitrators had sympathy with the contractor’s position.

Finally, those representing transportation owners and contractors on disputes answered two other questions about the arbitration process. In terms of levels of proof required to support their damages claims, half of the respondents answered that the level of proof required was the same as applicable in court, with 33% stating that it was slightly lower. A handful of respondents thought the level of proof was higher than in court. In terms of whether arbitrators were better at deciding liability, quantum, or both, 70% answered both, with the balance answering entitlement.

A substantial number (29) of the industry respondents provide neutral services, sometimes in addition to representing a client. They were asked several questions about their arbitration experiences, including those that were asked above. The responses were as follows:

• Deviation from Settled Law and Contract Terms. Seventy-two percent said they never deviated, while 21% said rarely, and 7% said sometimes. The overwhelming reason for deviating was that the enforcement would be unfair, with one respondent saying that it did not like a party’s conduct.
• Level of Proof for Damages. These answers were substantially similar to the answers given above by respondents who represented a party, where about half said the proof was the same as what would be applicable in court and about 42% noted that it was lower.
• Being Influenced More by Law or Facts in Arbitration. Ninety-three percent said that they were equally influenced by the facts and law.
• Difficulty in Deciding Liability or Damages. About half of the respondents answered that quantum was more difficult to decide, while 16% answered liability was. The balance considered both equally difficult.

Many comments were offered by the respondents relative to arbitration and its usefulness for disputes on transportation projects. These comments include the following:

• “In my experience, arbitration is the most effective method of binding dispute resolution for both contractors and DOTs, particularly on large disputes.”
• “It is not used enough by DOTs.”
• “It is much too lawyer intensive. There are too few practicing construction and engineering professionals on the panels. It has become far too legalistic.”