Creating Long-Term Success through Expanded “Partnering” - Chapter 23 - AAA Handbook on Construction Arbitration and ADR - Third Edition
Gerald S. (Jerry) Clay is a Partner in the law firm of Clay Chapman Iwamura Pulice
& Nervell where he emphasizes the practice of mediation and arbitration. Since 1975,
Mr. Clay has presided over 500 mediation matters, particularly focusing on commercial
and property disputes. Mr. Clay is author of Before You Sue - How to Get Justice without Going to Court, an introduction to mediation. Mr. Clay is listed in Best Lawyers in
America; Best Lawyers in Hawaii; and Super Lawyers in categories of alternative dispute
resolution and construction law. He taught Negotiation and Conflict Resolution at Hawaii
Pacific University from 1989 to 2004 and was an Adjunct Professor of Law at the
University of Hawaii Law School in 2005. Mr. Clay has lectured and trained arbitrators
and mediators for professional and dispute resolution organizations world-wide.
Ann L. MacNaughton represented the American Bar Association as a Delegate to
the 2002 World Summit on Sustainable Development in South Africa. Co-author and
lead editor of Environmental Dispute Resolution: An Anthology of Practical Solutions,
she was appointed in 2003 to serve a three-year term on the ABA Standing Committee on Environmental Law. A consulting attorney-mediator, facilitator and conflict management coach with more than 25 years of experience advising multinational energy companies, governmental organizations, and NGOs, she is a founding member of Stakeholder Solutions LLC, headquartered in Houston, Tex.
John F. Farnan, Jr. is a Principal with the Pittsburgh office of Navigant Consulting,
Inc. He has over 20 years of public accounting, auditing and consulting experience, and
has served as a mediator.
I. Introduction
Evolving business practices continue to place pressure on lawyers and
dispute management professionals to seek more efficient and economical
methods of avoiding and resolving disputes. Since disputes are costly,
avoiding them altogether can add significantly to the bottom line. To
minimize the potential for disputes, key project participants and their
employees must share the same goals and develop good communications
strategies so that they can discuss and resolve any bumps in the road. The
technique that can help achieve these ends is appropriately called
“partnering.” Sometimes called “structured collaboration” or “alliancing,”
partnering not only can minimize conflict, it can maximize the capacity of
project participants to discover new efficiencies and opportunities. In these
ways, partnering can create new value for the participating stakeholders.
The partnering process creates a proactive environment in which the
participants learn the importance of teamwork. For partnering to have the
desired effect, project participants must develop a working relationship
based on mutual respect and trust. The seeds of cooperation and
collaboration cannot grow when the participants suspect each other’s
motives and agendas. Consequently, the partnering process stresses the
importance of:
• honest communication; and
• moving beyond differences to achieve common goals.