Notes from the Editor

AuthorBy John Foust
John Foust
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.”
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
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.
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.”
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,”
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.
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
, 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,
continued on page 30

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