March 2021 – Law and Civil Engineering

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Alternative Dispute Resolution
by Eugene Bass

Alternative dispute resolution (ADR) is being used more commonly in construction disputes both by choice and by statute. ADR is essentially a process for resolution of disputes by means other than through the courts.

The traditional lawsuit starts with the filing of a complaint where the claimant in a dispute seeks recovery from the parties against whom various legal theories may indicate liability. The parties who are sued, in turn, may cross-complaint against the other parties and against others not initially named as defendants who they feel should stand or share the liability that may eventually be proven. The typical construction lawsuit, therefore, may easily become very complex, including virtually all the parties involved with the construction of the project out of which the litigation arose and relying upon a judge or jury that may have no knowledge whatsoever of construction for a decision.

The potential complexity and expense inherent in the traditional, lawsuit approach to resolving disputes has led to the popularity of ADR to construction cases. ADR includes, negotiation, mediation, arbitration, partnering, establishment of dispute review boards, mini-trials, and a variety of other processes that may be employed during and after the construction of a project to quickly and efficiently resolve disputes.

ADR is generally a more effective way of resolving construction disputes as compared with litigation. Success, however, will depend in large measure on the willingness of the parties involved to approach the process with a willingness and interest in resolving issues reasonably, quickly and in a cost effective manner. ADR generally works well because discussion is limited, the presentation of evidence is short and condensed. In addition, with ADR there can be reduced pleadings, motions or extensive depositions to prolong the proceedings and increase the costs. In litigation, the judge or the jury making the decision, may or may not be familiar with familiar with the construction terms, practices and issues involved in the dispute. That lack of knowledge can be substantially reduced in ADR where qualified and experienced persons can be selected to hear the dispute, resulting in a more efficient resolution process.

There are various organizations that provide ADR services and many individuals and attorneys who are experienced and available. The success of ADR in resolving construction disputes can depend in large part upon the participation of all the parties affected by the dispute and it is important that all the contract documents governing the project include provisions for ADR. While ADR may not be superior for the resolution of all construction disputes, experience has shown that it is a practical and expedient process that should always be considered as an alternative to litigation.

This article is intended only to provide general information regarding legal issues. It is not to be relied upon for legal advice. Contact your attorney for advise and guidance on general and specific legal issues.

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