Notes from the Editor

• Author: By John Foust
• Pages: 3-3

THE CONSTRUCTION LAWYER 3Spring 2020

John Foust

NOTES FROM THE EDITOR

Published in The Construction Lawyer, Volume 40, Number 2, Spring 2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

In Defense of Arbitration

There is a growing hostility

to arbitration in the court

of public opinion. Most

commentators believe this

arose from the #MeToo

movement,1 where the notion

of condential adjudication

is in stark contradiction

with the movement’s belief

that sunlight is the best

disinfectant. From there the

ire spread to public-interest

law groups such as the Pipeline Parity Project, launched

at Harvard Law School as “a grassroots campaign of law

students ghting to end forced arbitration, stop workplace

discrimination, and unrig the legal system.”

2

These groups

believe that “[f]orced arbitration effectively operates as a

secretive, privatized justice system that is stacked in favor

of big corporations.”3 They cite Economic Policy Institute

studies and others that estimate that plaintiffs prevail less

often in arbitrations and recover fewer damages when

they do.

This movement against what is referred to as “forced

arbitration” has had real legal, political, and legislative

consequences.

4

In California, Governor Gavin Newsome

signed a law banning forced arbitration in the workplace,

although a federal district court has temporarily halted

enforcement of that law for potentially violating the

Federal Arbitration Act and Supreme Court precedent.

5

Far more signicant is a piece of federal legislation called

the Forced Arbitration Injustice Repeal Act (FAIR Act),

which passed the House by a vote of 225 to 186 on

September 20, 2019. The bill, currently before the Senate,

has attracted 34 cosponsors6 and seeks to amend the FAA

to “prohibit predispute arbitration agreements that force

arbitration of future employment, consumer, antitrust, or

civil rights disputes.”

7

Although it is also not expected to

pass the Republican-controlled Senate (all 34 cosponsors

are Democratic or Independent), it is another harbinger of

changing attitudes toward arbitration.

For construction lawyers, this growing hostility toward

arbitration is cause for concern.8 While the FAIR Act would

not apply to commercial construction contracts because

of the bill’s denition of “consumer disputes,” the overall

shift in public opinion can affect how judges respond to

motions to compel arbitration. The U.S. Supreme Court

long ago said that “any doubts concerning the scope of

By John Foust

John Foust is a partner with Ralls Gruber & Niece in

San Francisco, California.

arbitrable issues should be resolved in favor of arbitration,”

9

yet I and many lawyers I know complain that courts have

begun denying arbitration in situations where that would

have been unthinkable ten years ago. It is hard to believe that

the political assault on forced arbitration in the employment

and consumer contexts has not had collateral damage in

the eld of construction arbitration, which is unfortunate.

Construction contracts do not share the adhesionary nature

of employment and consumer contracts, and there is no

evidence to suggest that construction arbitrations are biased

in favor of any one particular stakeholder. It is our duty

as construction lawyers to make sure that the legislature

and the courts understand the benets of arbitration in the

context of commercial construction disputes.

This Spring 2020 issue of The Construction Lawyer

collects several fascinating articles on the topic of alternative

dispute resolution. An article by Jim O’Connor, past chair

of the Forum, draws from the work of Israeli psychologists

Daniel Kahneman and Amos Tversky, whose studies on

heuristics in decision making demonstrated common

errors of human judgment, and applies their teaching to

the mediation of construction disputes. Another article by

former editor of The Construction Lawyer and past chair

of the Forum Adrian Bastianelli III, along with co-authors

Wayne DeFlaminis and Samarth Barot, provides thoughtful

guidance on how to manage nationality and cultural

differences during construction mediations and negotiations,

relying in part on the model of cultural dimensions outlined

by sociologist Geert Hofstede. Next, Albert Bates and R.

Zachary Torres-Fowler provide an excellent summary and

commentary on the 2019 Queen Mary University of London

International Arbitration Survey. Finally, Garth Snider

applies the theories of Plato and Kant to help interpret the

elusive concept of “quality” in construction contracts.

Endnotes

1. See, e.g., Alexia Fernández Campbell & Alvin Chang,

There’s a Good Chance You’ve Waived the Right to Sue Your

Boss and You Probably Agreed to It Without Knowing, V

OX

, Sept.

7, 2018.

2. Sejal Singh & Andre Manuel, Harvard Law Students Are

Taking on Forced Arbitration, THE NATION, Apr. 15, 2019.

3. Id.

4. See Andrew McWhorter, A Congressional Edifice:

Reexamining the Statutory Landscape of Mandatory Arbitration,

52 COLUM. J.L. & SOC. PROBS. 521 (2019).

5. Judge Halts California Law Banning Forced Arbitration at

the Workplace, L.A. TIMES, Dec. 30, 2019.

6. S. 610: Forced Arbitration Injustice Repeal Act Summary,

GOVTRACK, https://www.govtrack.us/congress/bills/116/s610/summary.

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