Project reportCourse title:

CONSTRUCTION MANAGEMENT AND PLANNING

Submitted by: GROUP N0 03

ALI RAZA UW-13-CE-Bsc-011

IRFAN ALI UW-13-CE-Bsc-003

MUHAMMAD ABUZAR UW-13-CE-Bsc-001

MASOOD CHANDIO UW-13-CE-Bsc-027

RAJA ZULQERNAIN UW-13-CE-Bsc-044

ABDUL AZIZ UW-13-CE-Bsc-016

Submitted to:

SIR SHAMIR JANJUA

Department of civil engineering

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Construction Dispute Resolution Method

AbstractDisputes and Confusion is common in all aspects of construction industry. Diversity of specialists involved, inconsistencies between design and construction and high risk environment that surrounds this industry often lead to disagreements on the legal obligations and rights of parties involved. Improving communication has been identified as the most effective method of

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preventing disputes. However in case of disputes happening, methods such as negotiation, arbitration, litigation, etc. are practiced in order to resolve the disagreements. It must be noted that negotiating and making attempt to prevent disputes at an early stage can always alter the path to a less adversarial settlement. Keywords: Construction Contracts, Dispute Resolution, Alternative dispute resolution

Acknowledgment:Countless gratitude to Almighty ALLAH, Who is then omnipotent, omnipresent & HE, who blessed with the chance and choice, health and courage, and knowledge enabled us to complete this project.

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All respect for the HOLY PROPHET MUHAMMAD (S.A.W.W), who is forever a torch of knowledge and guidance to humanity & enables us to shape our life according to the teachings of ISLAM, & endowed us an exemplary guidance in every sphere of life.I acknowledge the services of Sir Shamir Janjua in helping and guiding me in compiling and presenting the present report. In fact it would not have been possible for me to accomplish this task without his help.I dedicate this work to my Parents, to whom I am very thankful as they encouraged me and provided me all the necessary resources that had made possible for me to be able to accomplish this task. Regards

Group no 03

Table of ContentsIntroduction.................................................................................................................................................6

Construction Disputes.................................................................................................................................7

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The Top Three Causes Of Disputes On A Construction Project....................................................................7

Problems with the contract.....................................................................................................................7

Problems with the people.......................................................................................................................7

Problems with the unknown...................................................................................................................7

Types of dispute resolution methods..........................................................................................................7

Tradition Techniques...............................................................................................................................8

Litigation..............................................................................................................................................8

Negotiation........................................................................................................................................10

Alternative dispute resolution Technique (ADR)...................................................................................13

Arbitration.........................................................................................................................................13

Mediation..........................................................................................................................................14

Expert Determination........................................................................................................................16

Dispute Review Board........................................................................................................................17

PRIVATE JUDGING:.............................................................................................................................19

Conclusion.................................................................................................................................................20

Reference:.................................................................................................................................................21

Introduction

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Construction disputes happen fairly often; they are a reality on every construction project and could happen at any point in time during the design or construction phase of the project. Construction disputes vary in nature, size and complexity, but they all have a common thread; they are costly both in terms of time and money and are often accompanied with the destruction of individual and good working relationships. Indeed, it is this tendency to destroy relationships and increase time and cost of construction projects, that has provoked a common interest of researchers in different countries to understand the nature of the causes of construction disputes in order to formulate measures to prevent or minimize their occurrence or resolve them swiftly, efficiently and in a cost effective manner if they happen. Construction disputes, when not resolved in a timely manner, become very expensive in terms of finances, personnel, time, and opportunity costs. The visible expenses (e.g., attorneys, expert witnesses, the dispute resolution process itself) alone are significant. The less visible costs (e.g., company resources assigned to the dispute, lost business opportunities) and the intangible costs (e.g., damage to business relationships, potential value lost due to inefficient dispute resolution) are also considerable, although difficult or impossible to quantify. Respected professionals estimate that construction litigation expenditures in the United States have increased at an average rate of 10 percent per year during 1988-1998, and now total nearly $5 billion annually and cited by describe disputes as being the source of possible time and cost overrun and possible adversarial relationships between the different parties. This is not welcome to either Owner or Contractor.

Construction Disputes

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The construction industry is often regarded as claims oriented and a fertile ground for conflict and dispute. Given the expense and disruption to a business when a dispute arises, not to mention the potential damage to business relationships, dispute avoidance should be paramountClaims and disputes are common in the construction industry – projects are unpredictable and problems can occur for any number of reasons (e.g., poor weather and site conditions, material cost increases, design changes and delays, the owner’s decision to cancel the project, or any combination of these and other factors).

The Top Three Causes Of Disputes On A Construction Project

Problems with the contract 

The written (or unwritten) contract is what guides the parties’ expectations as to payment and performance.  The contract must clearly identify the rights and obligations of each player in the process, from developer, to designer, to contractor, to subcontractor and supplier.  More problems occur because an incomplete, vague or ambiguous "Scope of Work" in the agreement. A well-written contract that properly analyzes and allocates the risk on the project will often save heartache at the time of completion.

Problems with the people

It is no secret that successful companies are driven by successful people.  The opposite is true as well: failing companies suffer from poor management and leadership.  When "people" are responsible for building "things,"  you have to realize that those "people" can cause problems during the construction process, whether you are talking about a loan officer, a design team, a project manager or supply deliveryman.

Problems with the unknown  

This is what I would call the "catch-all" category, as disputes often arise from events beyond one or more of the parties’ control.  This woud include anything from unusually severe weather, to labor strikes, to differeing site conditions.  These "causes" often involve requests by the contractor for more time and/or money.

Types of dispute resolution methods

Tradition Techniques

Litigation

Negotiation

Alternative dispute resolution Technique (ADR)

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Arbitration

Mediation

Expert determination

Dispute Review Boards

Rent a Judge

Tradition Techniques

Litigation Much distinction can be made between the process of litigation and arbitration. No Dispute commented that there is little procedural difference between the two processes. Litigation is often the final resolution step should previous procedures have failed in achieving a desirable outcome. Although, where either party believe that the law will provide the best form of defence, they may choose to expedite informal/non-binding mechanisms and elect to proceed directly to formal court proceedings should the contract allow.Litigation involves the determination of the dispute in a court before a judge and involves a complex process requiring the use of significant resources generally including the use of legal representation. The court of law in which the dispute is heard depends on the size of the dispute in monetary terms. Additionally the jurisdiction and procedures of each court is governed by a strict set of court rules. Of particular importance for construction disputes is the introduction of Building Case lists in a number of states. This system is designed to allow building cases to be isolated and assigned by a specialist list of judges. Once the case is entered by application, the particular judge that administers that list will give directions for the further management of a proceeding. This allows the judge to identify at the earliest possible stage the key issues in the dispute and attempt to resolve those issues which may determine the case. The advantages of using building lists are 1.Removes unnecessary legal technicalities in documentation and presentation

2. Ensures issues are clearly defined between parties

3. Establishes procedures for the hearing of particular issues

4. Allows technical issues to be assessed by a technical expert and confines proceedings in court to the determination of legal and non-technical issues

Much commentary has been focused on the negatives of litigation. Steen & MacPherson (2000) stating that “Litigation is simply too time consuming, costly and acrimonious for most industry participants” and if commenced such a process should be used as a last resort. Due to delays for court hearings and time required to carry out the formal processes creates excessive time disadvantages over other dispute resolution techniques. Lathlaen (1991) stated that litigation requires “too much law, too little justice, too many rules, too few results”.

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However it must be recognised that litigation can still be considered as the most effective form of dispute resolution where one party does not wish to resolve the dispute, there are substantial legal implications, the proceedings are difficult to control or there are substantial allegations of dishonesty. Another distinct advantage is that the process is determined by fact and law ensuring that emotion is not a factor in the decision.

Characteristics of Litigation: Involuntary - a defendant must participate (no choice) Formal and structured rules of evidence and procedure Each party has the opportunity to present its evidence and argument and cross-examine the

other side - there are procedural safeguards Public - court proceedings and records are open The decision is based on the law The decision can be final and binding Right of appeal exists Losing party may pay cost

There are many factors that need to be considered before opting for litigation, some of which are listed below:

Potential advantages:

Cases become a matter of public record. Subsidised by the state, although this is changing Substantial pre action protocols designed to settle disputes prior to officially proceeding

to court. Adversarial process. Non consensual joinder of parties. Competent and knowledgeable judges in the TCC. Finally binding decision. Established and detailed procedures known by the legal profession. Relatively wide rights of appeal. Scope for tactical manoeuvring. Direct and wide ranging powers to enforce a decision.

Potential disadvantages

Cases become a matter of public record. Normally expensive. Substantial pre action protocols increase upfront costs. Little party control. Restricted rights of audience. Potentially complex enforcement processes of domestic judgments abroad. Relatively wide rights of appeal. Adversarial process. Finally binding decision.

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All costs not usually recoverable.

NegotiationNegotiation is the most basic means of settling differences. It is back-and-forth communication between the parties of the conflict with the goal of trying to find a solution.The Process: You may negotiate directly with the other person. You may hire an attorney to negotiate directly with the other side on your behalf. There are no specific procedures to follow - you can determine your own - but it works best if all parties agree to remain calm and not talk at the same time. Depending on your situation, you can negotiate in the board room of a big company, in an office or even in your own living room.Negotiation allows you to participate directly in decisions that affect you. In the most successful negotiations, the needs of both parties are considered. A negotiated agreement can become a contract and be enforceable.When and How Negotiation Is Used: Most people negotiate every day. In some circumstances you may want the help of a lawyer to help you negotiate a fair deal. Negotiation is the first method of choice for problem-solving and trying to reach a mutually acceptable agreement. If no agreement is reached, you may pursue any of the other options suggested here. This process can be appropriately used at any stage of the conflict - before a lawsuit is filed, while a lawsuit is in progress, at the conclusion of a trial, even before or after an appeal is filed.

Characteristics of Negotiation:

Voluntary Private and confidential Quick and inexpensive Informal and unstructured Parties control the process, make their own decisions and reach their own agreements (no

third party decision maker) Negotiated agreements can be enforceable Can result in a win-win solution

Skills Necessary for a negotiator Preparation and Planning skills

Knowledge of subject matter

Ability to understand the interest of the firm

Ability of persuade others

Good listening skills

Patience

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Ability to control emotions

Ability to maintain flexibility

Advantages of negotiation

In procedural terms, negotiation is probably the most flexible form of dispute resolution

as it involves only those parties with an interest in the matter and their representatives, if any. The parties are free to shape the negotiations in accordance with their own needs,

for example, setting the agenda, selecting the forum (public or private) and identifying the participants. By ensuring that all those who have an interest in the dispute have been

consulted regarding their willingness to participate and that adequate safeguards exist to prevent inequities in the bargaining process (i.e., an imbalance in power between the

parties), the chances of reaching an agreement satisfactory to all are enhanced. Like any method of dispute resolution, negotiation cannot guarantee that a party will be

successful. However, many commentators feel that negotiations have a greater possibility of a successful outcome when the parties adopt an interest-based approach as

opposed to a positional-based approach. By focusing on their mutual needs and interests and the use of mechanisms such as objective standards, there is a greater chance of

reaching an agreement that meets the needs of the parties. This is sometimes referred to as a “win-win” approach.

Negotiation is a voluntary process. No one is required to participate in negotiations should they not wish to do so.

There is no need for recourse to a third-party neutral. This is important when none of the parties wants to involve outside parties in the process, e.g., the matter to be discussed or

the dispute to be resolved may be highly sensitive in nature. Unlike the outcomes of certain adjudicative processes, e.g., the courts, the outcome of a

negotiation only binds those parties who were involved in the negotiation. The agreement must not, of course, be contrary to Canadian law (e.g., an agreement to

commit a crime would be illegal and thus void for public policy reasons). Assuming that the parties are negotiating in good faith, negotiation will provide the

parties with the opportunity to design an agreement which reflects their interests.

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Negotiations may preserve and in some cases even enhance the relationship between the parties once an agreement has been reached between them.

Opting for negotiation instead of litigation may be less expensive for the parties and may reduce delays.

Disadvantages of negotiation

A particular negotiation may have a successful outcome. However, parties may be of

unequal power and the weaker party(ies) may be placed at a disadvantage. Where a party with an interest in the matter in dispute is excluded or inadequately represented in the

negotiations, the agreement's value is diminished, thereby making it subject to future challenge. In the absence of safeguards in the negotiating process, the agreement could

be viewed by a participant or others outside the process as being inequitable, even though the substance of the agreement may be beyond reproach.

A successful negotiation requires each party to have a clear understanding of its negotiating mandate. If uncertainty exists regarding the limits of a party's negotiating

authority, the party will not be able to participate effectively in the bargaining process. The absence of a neutral third party can result in parties being unable to reach agreement

as they be may be incapable of defining the issues at stake, let alone making any progress towards a solution.

The absence of a neutral third party may encourage one party to attempt to take advantage of the other.

No party can be compelled to continue negotiating. Anyone who chooses to terminate negotiations may do so at any time in the process, notwithstanding the time, effort and

money that may have been invested by the other party or parties. Some issues or questions are simply not amenable to negotiation. There will be virtually

no chance of an agreement where the parties are divided by opposing ideologies or beliefs which leave little or no room for mutual concessions and there is no willingness

to make any such concessions. The negotiation process cannot guarantee the good faith or trustworthiness of any of the

parties.

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Negotiation may be used as a stalling tactic to prevent another party from asserting its rights

Alternative dispute resolution Technique (ADR)

Arbitration Arbitration is the submission of a disputed matter to an impartial person (the arbitrator) for decision.The Process: Arbitration is typically an out-of-court method for resolving a dispute. The arbitrator controls the process, will listen to both sides and make a decision. Like a trial, only one side will prevail. Unlike a trial, appeal rights are limited.In a more formal setting, the arbitrator will conduct a hearing where all of the parties present evidence through documents, exhibits and testimony. The parties may agree to, in some instances, establish their own procedure; or an administrating organization may provide procedures. There can be either one arbitrator or a panel of three arbitrators. An arbitration hearing is usually held in offices or other meeting rooms.The result can be binding if all parties have previously agreed to be bound by the decision. In that case, the right to appeal the arbitrator’s decision is very limited. An arbitrator’s award can be reduced to judgment in a court and thus be enforceable. In nonbinding arbitration, a decision may become final if all parties agree to accept it or it may serve to help you evaluate the case and be a starting point for settlement talks.How and When Arbitration Is Used: A common use of arbitration is in the area of labor disputes - between fire fighters and the city in wage disputes, for example. You will usually be represented by an attorney in arbitration.Many contracts have clauses which require that disputes arising out of that contract be arbitrated. You may have seen such a provision when you applied for a credit card or opened a retirement account or other account with a stock broker. You may want to explore using this process if you and the other side agree that the problem needs to have someone make a decision but you do not want the expense of going through the court process. If you agree to arbitrate or sign a contract with an arbitration clause, you should understand that the arbitrator may make the final decision and that you may be waiving your right to a trial in court.Who Provides This Service: Many attorneys, other professionals or professional associations offer their services as arbitrators. Typically your attorney will select the arbitrator based upon the particular type of the dispute. In complex and highly technical cases, often an arbitrator who is knowledgeable in that field is chosen. Usually fees are charged.Some courts offer court-sponsored, nonbinding arbitration and have specific procedural rules to follow.

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Characteristics of Arbitration: Can be used voluntarily Private (unless the limited court appeal is made) Maybe less formal and structured than going to court, depending on applicable arbitration

rules Usually quicker and less expensive than going to court, depending on applicable arbitration

rules Each party will have the opportunity to present evidence and make arguments May have a right to choose an arbitrator with specialized expertise A decision will be made by the arbitrator which may resolve the dispute and be final Arbitrator’s award can be enforced in a court If nonbinding, you still have the right to a trial

Potential advantages:

Private and confidential except in very limited circumstances. Internationally enforceable award (New York Convention 1958). Party control over procedures. Flexible procedural choice to suit circumstances of the dispute. Choice of adversarial, (usual), or inquisitive approach. Arbitrator’s specialist knowledge of industry sector and practices. Consensual process. Finally binding award. Limited scope of appeal. Limited scope for tactical manoeuvring on technical procedural grounds. Choice of place of proceedings. Wide choice of audience to represent party.

Potential disadvantages:

Can be expensive. Joinder of parties only by consensus. Unfamiliar procedures or rules for legal representatives. Finally binding award. Limited scope of appeal. Limited scope for tactical manoeuvring on technical procedural grounds. No direct enforcement powers. Legal Aid not available.

Mediation Mediation is a voluntary process in which an impartial person (the mediator) helps with communication and promotes reconciliation between the parties which will allow them to reach a mutually acceptable agreement. Mediation often is the next step if negotiation proves unsuccessful.

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The Process: The mediator manages the process and helps facilitate negotiation between the parties. A mediator does not make a decision nor force an agreement. The parties directly participate and are responsible for negotiating their own settlement or agreement.At the beginning of the mediation session, the mediator will describe the process and the ground rules. The parties or their attorneys have an opportunity to explain their view of the dispute. Mediation helps each side better understand the other’s point of view. Sometimes the mediator will meet separately with each side. Separate “caucusing” can help address emotional and factual issues as well as allow time for receiving legal advice from your attorney. Mediations are generally held in the office of the mediator or other agreed location.Agreements can be creative. You could reach a solution that might not be available from a court of law. For example, if you owe someone money but don’t have the cash, rather than be sued and get a judgment against you, settlement options could include trading something you have for something the other wants. If an agreement is reached, it will generally be reduced to writing. Most people uphold a mediated agreement because they were a part of making it. It can become a contract and be enforceable. If there is no agreement, you have not lost any of your rights and you can pursue other options such as arbitration or going to trial.When and How Mediation Is Used: When you and the other person are unable to negotiate a resolution to your dispute by yourselves, you may seek the assistance of a mediator who will help you and the other party explore ways of resolving your differences. You may choose to go to mediation with or without a lawyer depending upon the type of problem you have. You may always consult with an attorney prior to finalizing an agreement to be sure that you have made fully informed decisions and that all your rights are protected. Sometimes mediators will suggest that you do this. Mediation can be used in most conflicts ranging from disputes between consumers and merchants, landlords and tenants, employers and employees, family members in such areas as divorce, child custody and visitation rights, eldercare and probate as well as simple or complex business disputes or personal injury matters. Mediation can also be used at any stage of the conflict such as facilitating settlements of a pending lawsuit.Attorneys and other professionals provide private mediation for a fee. If you have an attorney, you can work together to select a mediator of your choice. You may want a mediator who is knowledgeable about the subject matter of your dispute. You may wish to use a for-fee mediator in the first instance or if Early Settlement mediation has not resulted in a resolution of your dispute. You may also find mediators or mediation services listed in the telephone directory or available on lists provided by some courts or private professional organizations. When selecting a mediator, you should always check their credentials and get references. Mediators qualified under the District Court Mediation Act or certified pursuant to the Dispute Resolution Act meet statutory standards of training and experience.

Characteristics of Mediation:

Promotes communication and cooperation Provides a basis for you to resolve disputes on your own Voluntary, informal and flexible Private and confidential, avoiding public disclosure of personal or business problems Can reduce hostility and preserve ongoing relationships Allows you to avoid the uncertainty, time, cost and stress of going to trial

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Allows you to make mutually acceptable agreements tailored to meet your needs

Advantages of Mediation Mediation is less adversarial and can be less damaging, emotionally for both sides, as

well as the children. The parties are in control and make the decisions – not the government. The parties can be more creative in fashioning an agreement on how to parent and divide

their debts and assets. A judge is limited by law to what they can do. As a result, agreements can be tailored to the unique needs of the family.

Parties are more likely to comply with a mediation agreement rather than an order which they don’t like mandated by a judge.

Mediation is confidential Mediation can save time and money You can pick your mediator, but you can’t pick you judge. The mediator has more time to devote to the issues than a judge does, so the mediator can

listen to both parties issues and concerns and can try to help the parties resolve them.

Disadvantages of Mediation Mediation may result in disclosure of information and case theories to the other side.

However, most of the information shared at mediation would be produced to the other side through discovery anyways.

Imbalance of Power may make the outcome unfair. In some situations each party has relatively equal power, however in other situations, one party has more power than the other. This imbalance of power could be due to economic resources, knowledge, personality, culture, age difference or history of domestic violence.

Unrepresented parties may not be aware of rights and as a result enter into an agreement that they otherwise would not have entered into. This is a legitimate concern, because unless the agreement was signed under fraud, coercion or duress, which is very difficult to prove, the agreement will be enforced.

Success in mediation depends on each party’s “good faith” commitment to the process which is sometimes lacking.

Mediation is focused on the future, so past conduct may be overlooked or minimized.

Expert DeterminationExpert Determination is the process whereby the parties agree to refer their disagreement to an impartial expert third party and that they will then be bound by his or her decision. Like adjudication and arbitration, the parties can choose who the appointed expert is.

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Expert Determination is more commonly used in industries other than construction but it is a process that may be well suited to some types of construction related disputes. In the construction industry it is primarily used to resolve technical issues, such as defects or extension of time claims. As a guide, if a court would rely on expert evidence to resolve the dispute, expert determination will possibly be a viable and cheaper alternative.The process is relatively quick, informal, confidential and inexpensive when compared to other processes. There are no formal hearings but the expert may meet with the parties, possibly separately if there are no objections. There is no requirement to have legal representation or for each party to see and hear what the other party has seen or heard. However some experts may feel more comfortable following the established rules of natural justice during the process and not have unilateral contact with either party.The person carrying out the expert determination is not acting as a negotiator, mediator, adjudicator or arbitrator. The processes followed may be entirely at the experts’ discretion or published rules may be followed. Exceptionally the parties may decide not to submit any evidence at all and leave the expert to investigate and ascertain the facts and law, thus keeping costs to a minimum.The decision to use expert determination will either be stated in the contract or, after a dispute has arisen, the parties agree to use the process instead of those originally stated in the contract. The original contract is then amended or a new contract is drawn up to reflect the parties wishes.The decision is a finally binding determination and is only subject to appeal on the very limited grounds of jurisdiction, fraud, collusion or bias. Expert determinations are enforceable through the courts in the UK but may not be in other jurisdictions. In international disputes therefore the use of expert determination may not be an appropriate process depending on where the likely place of enforcement is situated.The use of expert determination does have many advantages over other processes. Speed, informality, flexibility, confidentiality and cost being the main ones. However other processes may contain tactical advantages that expert determination does not, such as a tight and enforceable timescale or greater scope to challenge the decision if required. It is not a general purpose process suited to all disputes but rather a specific process very well suited for resolving technical disagreements.

Advantages

1. The parties can select the expert or characteristics of the expert

2. The expert can act as an investigator3. Seldom lengthy oral arguments or legal

submissions4. No cross examination or formal evidence5. Streamlined, speedy and flexible procedures

as agreed between the parties and the expert6. Less expensive

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Disadvantages

1. The expert cannot go beyond the jurisdiction specified in the contract2. The expert determination is not supported by statute3. No testing of evidence or assertions4. The expert's powers are limited5. Limited opportunities for appeal

Dispute Review BoardIt is not uncommon for disputes to arise between owners and contractors during a construction project. One way to resolve disagreements without getting entangled in time-consuming, expensive litigation is by providing for a dispute review board (DRB) in the project contract. The review board, a panel of three experienced, respected, and impartial reviewers, takes in all the facts of a dispute and makes recommendations on the basis of those facts and the board's own expertise. This trend in "preventive law" has been taking hold all over the world, saving time, project costs, and legal fees.The success rates of DRBs are impressive. According to the Dispute Review Board Foundation, by 2000, 97 percent of construction disputes using DRBs were settled without proceeding to litigation. These disputes involved 757 projects and $39.5 billion.The DRB and its procedures are organized before construction begins. The contractor selects one member and the owner another (each must approve the other's choice); and a third is selected jointly. The costs of the review board are often shared by the owner and contractor, and the board's procedures are spelled out beforehand in the contract.Typically, the DRB receives copies of the contract documents, makes a project inspection tour, meets periodically at the site, and is kept informed of project developments. In the event a discrepancy occurs that the owner and contractor cannot settle on their own, the DRB will hear both sides of the argument at a meeting and produce a written recommendation for resolving the dispute. Although the decision is not binding, the parties usually defer to the judgment of the board; to do otherwise would defeat the purpose of having a DRB. The parties have had an opportunity to be heard, and they recognize that the DRB members have technical expertise and a firsthand understanding of the project.

Advantages Of Using Dispute Review Boards1) For large, complex projects, DRBs can save enormous amounts of money and time.

Disagreements are settled contemporaneous with the construction project, which allows the parties to free up time and resources and allows personnel to work on more productive things. The costs of pursuing court claims are avoided. Further, DRBs offer a forum for subcontractor complaints; many claims involve subcontractors, and DRBs are able to assign responsibility between the owner and primary contractor for those claims.

2) There are intangible benefits as well. The prospect of reporting to a board of experts shifts owners and contractors into a more proactive, preemptive disposition, which contributes to a more positive atmosphere at the job site. Both parties tend to want to

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appear cooperative and to hammer out problems before they reach the board level. Preparing for a review may uncover new or better information that can lead to settlement. When settlement cannot be reached, the DRB's recommendation diminishes the likelihood of hard feelings developing between contractors and owners.

3) Foremost, though, the goal of DRBs is the quick resolution of construction disputes so that construction jobs get completed faster and the parties can avoid adding their case to already clogged civil court dockets.

Potential DisadvantagesDRBs are normally cost-effective for both parties in large projects because of the potential savings in claims avoidance. For small projects that may find the cost of supporting a DRB prohibitive, the one-person DRB is an option. Like the three-person panel, the single expert is chosen by owner and contractor and operates using the same principles and procedures. Research is underway to measure the costs and benefits of DRBs.Another drawback may be the relative newness of this concept. Although use of DRBs has spread quickly in the construction industry, contractors who are unfamiliar with the concept may view the DRB as simply an added cost rather than a potential source of savings. Without appropriate training and information about the demonstrated value of DRBs, some contractors may resist their use. Understanding is key to making the process work

PRIVATE JUDGING: Private judging involves employing a retired judge to hear a dispute.  As with arbitration, private judging is done by consent of the parties, and typically the parties agree that the private judge's decision will be binding.  Private judges are usually given most of the powers of a court, and the hearing resembles a typical court trial.  The main advantage to private judging over the public courts is the shorter time it takes to get the matter brought to trial

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Conclusion

All of the above processes using alternate dispute resolution procedures are unique and have been found to work in various circumstances. It is necessary to determine which process works best for you, and how to incorporate that process in your construction projects. In my opinion the best manner of doing that is determining that in advance with the parties prior to entering into any agreement so that there is no doubt as to what process or processes are to be followed. In my view there is no doubt that the alternate dispute resolution process has definite advantages over the court system, both in the area of economics and in timeliness of results.

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Reference:

http://webcache.googleusercontent.com/search?q=cache:http://www.rics.org/us/join/member-accreditations-list/dispute-resolution-service/dispute-resolution-toolkit/

http://www.duanemorris.com/articles/static/sanacory_cfma_1012.pdf

http://ascpro0.ascweb.org/archives/cd/2014/paper/CPRT262002014.pdf

http://www.bestpracticesconstructionlaw.com/2010/05/articles/project-management/the-top-three-causes-of-disputes-on-a-construction-project/

http://www.constructionlawmadeeasy.com/advantagesanddisadvantages

https://www.fhwa.dot.gov/construction/fs02009.cfm

http://www.slideshare.net/coburgpsych/alternative-dispute-resolution-methods?qid=573f997e-1549-4ad2-b652-2a196ff81370&v=qf1&b=&from_search=1

http://www.okbar.org/public/brochures/methodsforresolvingconflictsanddisputes.aspx

http://www.frostbrowntodd.com/resources-01-22-20071.html

http://www.construction-dispute.co.uk/arbitration.html

http://www.nzdrc.co.nz/MEDIATION.html

http://www.nzdrc.co.nz/EXPERT+DETERMINATION.html

http://www.construction-innovation.info/images/pdfs/Literature_Review.pdf

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