Alternate Dispute Resolution

The goal of all parties involved in construction disputes should be the equitable, timely and economical resolution of those disputes. The time and costs required to settle construction disputes through litigation continue to be a bar to achieving that goal. As a result, the move towards using alternate dispute resolution (ADR) methods to settle construction disputes, which took hold in the early 1980’s has been almost universally adopted by in contracts. The most common ADR methods are arbitration and mediation. JDE has substantial experience acting as consultants, advisors, and decision makers in these following forms of ADR:

Arbitration

Arbitration is, perhaps the earliest recorded form of ADR, being recorded as being used by the Greeks in the sixth century B.C. Arbitration is simply the private settlement of disputes outside of the courtroom by a decision maker (arbitrator). The decision is usually binding and enforceable by the courts. Arbitration decisions can be appealed through the courts, but generally the courts will try to let the decision stand. While arbitration can save time and expense by reducing the amount of discovery, it does not always provide the timely and economical solution the parties may require.

Mediation

In mediation, unlike arbitration, the parties themselves are in control of the settlement amount. Each party will make presentations before the mediator and the other parties. In construction mediations, where the parties will not typically divulge their bottom line in a joint forum, the mediator will normally meet separately with each party to discuss the strengths and weaknesses of their case and begin the true mediation process. If a settlement is reached the mediator will record it and require the parties to sign off on the agreement. JDE is a strong supporter of the mediation process and believes that in most cases, if the parties truly want to settle the dispute, mediation will work.

Project Referee

Many contract forms, particularly governmental departments, use a project referee (typically a non-binding arbitration process) as part of their dispute resolution process. JDE staff have been approved as project referees by B.C. Hydro, Defence Construction Canada, and the City of Edmonton.

JDE has wide experience in the expanding ADR field, from providing independent opinions to acting as consultant and advisor in mediations to the design of "real time" dispute resolution procedures on major capital projects.

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