Construction Practice Group Leader Ken Roberts was quoted on the role of baseball arbitration in construction payment disputes, specifically two-party matters focused on a single issue involving payment.
Under this method, when two sides disagree on how much one should pay the other, each attempt to prove their case to an arbitrator who will choose one of the two numbers presented by the involved parties. Proponents of baseball arbitration cite its speed, low cost, and potential to prompt a pre-decision settlement. The process also forces attorneys to ensure their clients understand the deficiencies in their case, narrowing the gap between the amounts submitted. The more reasonable number is more likely to win.
Ken said, “If you take too big of a lead off first base, you can get picked off. You’d better be damn accurate with your client about what you think you’re owed. And you’re constantly trying to game out whether your opponent is being too aggressive with the lead they’re taking off first base.”
Ken has done several baseball arbitrations on construction matters and would do more if he could get his opponents to agree to it. The technique is less flexible than litigation or traditional arbitration. Lawyers also may not want to have a hard conversation with their clients about what the right amount is to put forward.
It’s easier to say, “you’re right, let’s get ‘em,” Ken added, but harder to tell a client that while you hear their concerns, a certain number is more likely to be chosen by the arbitrator
“The client thinks: ‘Why aren’t you my defender? Why aren’t you my gladiator?’ A lot of attorneys would rather not put themselves in that position.”
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