Mediation & Arbitration / 4 min read
As construction disputes grow in complexity, so too does the process for resolving them outside of court. Arbitration has become the preferred method for resolving these highstakes conflicts, offering parties a streamlined, private, and often faster path to resolution. Two of the leading arbitral forums in the United States—the American Arbitration Association (AAA) and Judicial Arbitration and Mediation Services (JAMS)— are frequently chosen for construction disputes. But while both offer respected rules and experienced panels, there are key differences that may tip the scale in favor of one over the other depending on the case.
1. Specialized Rules and Procedures
AAA offers Construction Industry Arbitration Rules, which have been carefully refined over decades to address the unique dynamics of construction projects. AAA updated its rules in 2024 following an extensive review process geared toward staying ahead of technological advancements and to streamline processes. AAA obtained “input from the National Construction Dispute Resolution Committee, advocates, in-house counsel, arbitrators and industry professionals from across the nation.” These new rules provide a structured framework tailored to large, multi-party disputes, including provisions on consolidated proceedings, emergency measures, and industry-specific procedures. AAA also offers a “Fast Track” option for claims under $150,000.
JAMS, like AAA, offers a dedicated set of rules specifically for construction disputes— the JAMS Engineering and Construction Arbitration Rules & Procedures, most recently updated in June 2021. These rules address the unique demands of construction arbitration, including complex multi-party disputes, early case management, streamlined discovery, and specialized options such as final-offer arbitration, high-low (bracketed) awards, and an optional appeal process. JAMS also encourages a collaborative approach to tailoring procedures to fit the project or dispute at hand, combining industry knowledge with flexible administration.
Takeaway: Both AAA and JAMS offer construction-specific rules, but JAMS may appeal to parties looking for procedural innovation, built-in customization options, and tools like optional appellate review within a construction-focused framework.
2. Arbitrator Expertise and Selection
Both AAA and JAMS boast deep rosters of construction-savvy neutrals, but their approaches differ: AAA maintains an industry-specific construction panel with engineers, architects, and former construction executives, alongside construction litigators. Arbitrators are appointed based on qualifications and experience in construction law and industry knowledge.
JAMS, traditionally known for its roster of former judges, has increasingly expanded its pool to include attorneys with construction experience. Some parties prefer the judicial gravitas JAMS neutrals bring, particularly for evidentiary disputes or complex legal questions.
Takeaway: If technical construction knowledge is paramount, AAA may provide more industry-insider arbitrators. If judicial demeanor and procedural control are more valued, JAMS may be the better choice.
3. Administration and Efficiency
AAA has a long-established administrative infrastructure and is known for its consistency in handling large, multi-party disputes. The AAA case managers are generally experienced in coordinating high-volume discovery, phased hearings, and complex scheduling. JAMS takes a more hands-on, concierge-style approach to administration. Its case managers often work more closely with parties, and some practitioners find the process more responsive and customizable.
Takeaway: AAA may offer better infrastructure for large institutional cases; JAMS may be more responsive and client-friendly in smaller or tailored matters.
4. Costs and Fees
AAA uses a scaled fee structure based on claim amount, with additional hourly arbitrator compensation. Its administrative fees can be significant in large disputes, but predictable.
JAMS charges arbitrator fees based on the individual neutral’s hourly rate, which often reflects their seniority and subject-matter expertise, including many former judges and seasoned construction practitioners. Administrative fees are flat rate rather than scaled to the size of the claim, and may initially appear lower than AAA’s tiered system. However, in complex or prolonged matters, the total cost of arbitration—particularly due to hourly arbitrator compensation—can exceed that of AAA. Parties benefit from personalized service and case management, but should plan for higher overall costs in extended proceedings.
Takeaway: JAMS may offer greater flexibility and access to construction arbitrators, but at a premium—especially in lengthy or high-stakes disputes. AAA’s scaled fee structure may be more cost-effective in smaller or mid-size cases.
5. Flexibility and Customization
AAA rules provide a well-defined, structured framework that emphasizes consistency, especially useful in large, multi-party disputes where coordination and predictability are critical. The rules include built-in procedures for consolidating related cases, managing discovery, and conducting hearings. While the rules allow for some degree of procedural flexibility—with party agreement or at the discretion of the arbitrator—AAA generally adheres closely to its rulebook, which many institutional users appreciate when there is little cooperation between parties.
In contrast, JAMS’ process is more party driven, offering broader discretion to customize timelines, discovery limits, and hearing formats. This can lead to faster and more efficient proceedings when parties are aligned—but it can also create friction if they are not.
Takeaway: AAA is well-suited for disputes requiring procedural discipline, especially when parties anticipate conflict over process. JAMS provides more procedural creativity and flexibility for parties looking to collaborate and tailor the arbitration to their unique needs.
Conclusion: Choosing the Right Forum for Your Construction Dispute
There is no one-size-fits-all answer when choosing between AAA and JAMS for construction arbitration. The optimal forum depends on the complexity of the dispute, the parties’ desired level of procedural flexibility, cost sensitivity, and the type of expertise required—whether technical or legal.
AAA may be the better choice for:
- Large-scale, multi-party construction cases.
- Projects involving highly technical or engineering-heavy issues.
- Parties seeking a predictable, rule-driven process with long-standing institutional procedures.
- JAMS may be ideal for:
- Disputes that benefit from customized procedures and party-driven timelines.
- Cases involving sophisticated legal issues or where judicial experience is valued.
- Situations where parties want access to tools like optional appellate review, bracketed or final-offer arbitration, or expedited construction procedures.
Ultimately, both forums offer experienced neutrals and construction-specific arbitration rules. The key is aligning your selection with the unique needs of your dispute—and ensuring that your contract's dispute resolution clause reflects that choice clearly.