CONSTRUCTION, REAL ESTATE, AND COMMERCIAL ATTORNEY AND ARCHITECT, Gary L. Cole AIA, Esq. is an active arbitrator and mediator, and has served as neutral on nearly 100 disputes ranging from tens of thousands of dollars to millions of dollars in controversy, as both a sole neutral and chair of a three-person arbitration panel. While most active in the Midwest United States, he provides in-person and remote arbitrator and mediator services for parties located in the United States and abroad.
He blends his attorney’s experience and expertise in resolving construction, commercial and real estate disputes with his architect’s training and experience in the physical, contractual and project administrative issues that give rise to them. His understanding and insights into the legal, design and construction industries result in efficient, cost-effective and timely arbitration awards and mediation conferences with a very high rate of settlement. His dual professional backgrounds allow him to fluently communicate with disputing parties and their counsel in the industry-specific languages of law and construction.
He is an experienced real estate attorney and former in-house counsel for one of the Southeast’s largest retail and mixed use developers.
He is also an experienced member of the American Arbitration Association’s (AAA) construction and commercial panels of Arbitrators and Mediators, including its Fast Track, Regular Track, Large, Complex Construction Dispute Panel and its Large Complex Commercial Dispute Panel. He has served as Chair Arbitrator on three-arbitrator panels, and can also serve ad hoc as arbitrator and mediator.
Mr. Cole serves the Chicago area as well as Central Illinois and the greater Midwest and frequently travels out-of-state to serve as arbitrator and mediator. He can travel anywhere in the United States to provide mediation and arbitration services. Mr. Cole can accommodate court-ordered and short notice mediations, depending on the specifics and timing. He is fully COVID vaccinated for in-person dispute resolution, as well as experienced in conducting many arbitrations and mediations remotely by Zoom.
ARBITRATOR AND MEDIATOR EXPERIENCE
Mr. Cole has served as an arbitrator and mediator in nearly 100 construction, commercial and real estate-related disputes ranging from $25,000 to over $15,000,000 in claims and involving a wide variety of complex dual-party and multi-party claims and counterclaims under American Institute of Architects (AIA) and other industry-standard and custom construction agreements and real estate documents. He has served as arbitrator in complex multi-party disputes with arbitration hearings lasting up to thirteen (13) days in length, and has served as Chair Arbitrator for numerous complex arbitrations involving domestic and international parties.
DISPUTING PARTIES: He has served as arbitrator and mediator for construction and real estate disputes involving lenders, borrowers, developers, owners, architects, designers, contractors, subcontractors, consultants, tenants, landlords, condominium associations, local governments and federal agencies.
PROJECT TYPES: His arbitration and mediation project types have included commercial development, retail facilities, hotels, restaurants, county courthouse and jails, federal courthouse, industrial and sustainable energy developments, public school districts and private educational institutions, modular mixed-use commercial and student housing, mid-rise mixed commercial and student housing, mixed-use high-rise residential condominium and commercial development, senior community and assisted living developments, multi-family residential, mid-range single-family residential, high-end single family residential projects.
DISPUTED ISSUES: His arbitration and mediation disputed issues include construction, real estate and commercial issues include contract breach and performance issues under American Institute of Architects (AIA) and many other industry-standard and custom construction agreements, as well as claims involving design and construction defects, material and structural failure, change order disputes, uncompleted punch list issues, HVAC performance, code compliance, fraud allegations, scheduling and delay claims, non-payment claims, mechanics liens, cost overruns, concrete and masonry failure, foundation and caisson issues, unforeseen conditions, partnership agreements, intellectual property and related copyright infringement claims, foreclosure, loan modification and asset relinquishment, and a wide range of other construction and commercial disputes.
He has also arbitrated and mediated commercial and residential real estate disputes between owners, tenants, and condominium associations involving interpretations of parties’ obligations for the construction and maintenance of properties under Illinois law, Declarations of Covenants, Conditions and Restrictions, Bylaws and other instruments.
DOCUMENTARY &, PHYSICAL EVIDENCE EXAMINATION, SITE VISITS: As an attorney and architect, has extensive experience preparing and reviewing design, construction industry and real estate documentary evidence, including construction drawings and other contract documents, specifications, project manuals, bid documents, change orders, pay requests, photo-documentary evidence, material samples, critical path and project schedules, expert forensic reports, legal entity formation documents, condominium formation and management documents, purchase and sale agreements, easements and development agreements. When requested by the parties, performs on-site existing conditions inspections.
APPROACH AS AN ARBITRATOR
As an arbitrator, Mr. Cole believes he can best serve disputing parties by combining his expertise in law and construction to thoroughly understand the legal claims and highly technical details of construction and real estate disputes. This also allows him to streamline proceedings and provide efficient and cost-effective arbitrations.
Prior to arbitration hearings, Mr. Cole examines parties’ claims, counterclaims and pre-hearing evidentiary submissions to deeply familiarize himself with the facts, allegations and technical aspects of parties’ disputes. This deep understanding allows him to issue informed and fair awards.
He has complete familiarity with design, construction and real estate industry documentary evidence, including construction documents and specifications, project manuals, bid documents, photo-documentary evidence, change orders, project scheduling and administrative records, expert testimony and forensic reports, material samples, real estate agreements and recorded documents of a wide variety, and conducts on-site existing conditions inspections as requested.
Drawing on his experience as a mediator, he maintains an awareness throughout arbitration hearings for a change in tone of the proceedings that indicates one or more parties’ may be open to settlement. In such cases, he has proposed the possibility of settling one or more aspects of disputes, which has, in some cases, led to a complete settlement without the need for him to issue an award.
PHILOSOPHY AND APPROACH AS A MEDIATOR
Mr. Cole’s mediation philosophy and approach include the primary goal of parties leaving mediation conferences with signed settlement agreements. He believes that anything less, such as nonbinding writings of settlement intent, are less likely to ensure the timely execution of binding settlement agreements.
He draws from his backgrounds as an experienced construction and real estate attorney, and licensed architect to provide a successful “Evaluative/Facilitative” mediation approach, which includes examining the parties’ pre-mediation conference document submissions to understand and evaluate each party’s allegations, arguments and documentary evidence.
Prior to a mediation conference, he discusses separately and confidentially with each party their positions and goals along with the confidential evaluations of each party’s position, strengths and weaknesses based on a review of the parties’ document submissions. These discussions allow the parties to consider the best approach for navigating the mediation process and achieving a successful settlement.
During the mediation conferences, he guides the parties through discussions of the more legally and technically problematic aspects of their disputes. These discussions, along with the confidential pre-mediation conference evaluations of each party’s position, strengths and weaknesses, allows the parties to continuously evaluate and adjust their positions and their settlement options as the mediation conference progresses.
The majority of Mr. Cole’s mediations that settle are reflected in settlement agreements executed at mediation conferences. However, in some cases, the complexities of the dispute and time considerations require the parties to continue their negotiations post-Mediation Conference. In such cases, and upon the agreement of the parties, Mr. Cole continues in his role as mediator to assist in resolving all remaining issues and reaching settlement.
ARBITRATOR AND MEDIATOR FEES
(Please contact Mr. Cole to discuss his current fees for specific disputes.)
Mr. Cole keeps his arbitrator and mediator fees market competitive, and, drawing on his experience as an attorney and licensed architect, he brings unique value to his services as arbitrator and mediator. He bills at both an hourly rate for his time spent administering and preparing for arbitration hearings and mediation conferences, and, a flat rate for each day of hearing or conference.
Mr. Cole will travel anywhere in the continental United States as arbitrator and mediator at no cost for either travel time or direct travel expenses to parties for arbitration hearings or mediation conferences that last three (3) days or more. For arbitration hearings or mediation conferences lasting one (1) or two (2) days, direct reimbursable travel expenses and reasonable travel time are billed to the parties as agreed upon between Mr. Cole and the parties at the commencement of his services.
He charges no cancellation fee for written cancellations he receives more than twenty-four (24) hours prior to the scheduled commencement of any arbitration hearing or mediation conference, unless direct travel expenses are involved, in which case he would be reimbursed for those actual expenses.