Alternative Dispute Resolution in U.S. Public Works: Proposed Model

Alternative dispute resolution (ADR) is rapidly becoming a mainstream option to traditional litigation in the United States. Its effectiveness in resolving private-sector construction disputes has been proven, and its benefits, for the most part, uncontroverted. Sufficient attention, however, has not been given to adapting ADR for use on public projects. Public construction operates in a unique context, where the institutional realities facing a public owner can undermine the effectiveness of even the most promising ADR method. This paper discusses the characteristics of ADR, its acknowledged benefits, and the extent of our present ability to realize those benefits in public construction. Measures for tailoring ADR for its effective use in the public sector are offered.     

Mediation∕Arbitration: Alternative Dispute Resolution Process

Interest in alternative dispute resolution (ADR) techniques for the construction industry has grown in recent years. Traditional litigation has been criticized on several fronts. The traditional procedures are often cumbersome, expensive, and lengthy. The outcome of litigation is uncertain and often confusing. For certain cases, alternative procedures may be useful in quickly resolving disputes. Sometimes there is no alternative to litigation. Each case is unique, and the appropriate form of dispute resolution mechanism must be established for each project. This paper reviews the process of mediation∕arbitration, and compares that process to other alternative dispute resolution procedures.     

Alternative Dispute Resolution Techniques: Design Professional's Perspective

Alternative dispute resolution (ADR) techniques offer members of the design‐construct community the opportunity to resolve disputes without having to resort to expensive and lengthy litigation. Disputes inevitably arise because elements of the design‐construct process, such as contracts, specifications, and personnel, are not perfect. Even with a qualified project team that is dedicated to the construction of a quality project, some disputes will occur. Knowing this, a project team's primary objective should be to anticipate circumstances which might generate a dispute and to develop proactive strategies for dealing with such circumstances. When a dispute does occur, internal negotiation should be tried first. This process involves decision makers—those involved financially and those who understand the ultimate impacts of the dispute on the quality and long‐term success of the project. Lawyers should not actively participate in internal negotiation except as a last resort. If this process does not generate a settlement, mediation and arbitration should be tried before commencing litigation proceedings. ADR is an approach to dispute resolution that may be less expensive and time‐consuming, and is more likely to yield “win‐win” settlements than other dispute resolution techniques.     

Analysis of Dispute Review Boards Application in U.S. Construction Projects from 1975 to 2007

Since their first successful implementation in 1975, dispute review boards (DRBs) gained popularity as a standing neutral alternative dispute resolution (ADR) technique, and were implemented on a number of high profile construction projects in the United States and worldwide. The purpose of this study is to present a review, trend analysis, and classification of U.S. construction projects that had DRBs for the period of 1975–2007. Thus, a total of 1,042 U.S. construction projects that had DRB as part of their contract provisions are extracted from the Dispute Review Board Foundation database and are analyzed. The results of this study are presented in two major sections. In the first section, results of trend analysis are reported as growth in number of projects with DRB since 1975, as well as the distribution of these projects in terms of construction type (i.e., building, highway, and tunnel), and construction volume category. On the other hand, the second section includes the results of the analysis undertaken to study the mechanics of DRB application in construction projects. In this context, the effectiveness of DRB as a preventive measure against the escalation of conflicts to disputes is first studied. For those projects that had disputes heard by a DRB panel, the data was further analyzed to determine the effectiveness of the DRB as an ADR technique that can help in the resolution of a dispute at the project level without further escalation to arbitration or litigation. The results of the study indicate that DRBs have been successfully implemented in all three construction sectors in the United States. The effectiveness of DRB as a prevention technique was observed on approximately 50% of the 810 projects where no disputes were ever heard through a DRB panel formal hearing. For the remaining 50% of the projects, the effectiveness of DRB as an ADR technique was found to exceed 90% when comparing the number of disputes that were settled due to DRB recommendation to those that were actually heard during a DRB hearing session. Finally, the paper concludes with a set of questions and hypotheses that may be undertaken to explain the recorded observations, and set the way for future research efforts in this area.     

The intersection of therapeutic jurisprudence, preventive law, and alternative dispute resolution.

The author examines the intersection of alternative dispute resolution (ADR) with the theory of therapeutic jurisprudence (TJ) and the practical advice suggested by preventive law (PL). The 1st part of this article has a brief review of each of these approaches and notes similarities in their underlying concepts. In the 2nd part of the article, the use of TJ and PL in the practice and pedagogy of ADR is examined. A framework provided by the integration of TJ and PL can help lawyers counsel their clients in choosing between ADR methods and in designing dispute resolution systems. Finally, lessons and ideas that both TJ and PL could draw from ADR are examined. Empirical ADR research can support the premise of TJ. The implementation of ADR programs can also demonstrate the importance of balancing therapeutic factors with legal and financial factors while providing lessons for other areas of the law seeking to implement TJ and PL ideas. (PsycINFO Database Record (c) 2011 APA, all rights reserved)     

Exploring the Potential for Predicting Project Dispute Resolution Satisfaction Using Logistic Regression

The success of a construction project depends on the coordinated efforts of project team members. This is especially crucial when a project is in dispute and hence the achievement of satisfactory project dispute resolution is critical to project success. This proposition has been empirically demonstrated a previous research that studied project dispute resolution satisfaction (DRS) using multivariate discriminant analysis (MDA). This paper reports on a study that builds on that research, with the specific aim of predicting project DRS through the use of logistic regression (LR). In this study, a LR model of project DRS (Model 1) is developed, and then compared with the MDA model. The findings suggest that the LR technique provides a higher hit rate and thus a higher proportion of correct classification. With the wider acceptance of the use of alternative dispute resolution (ADR) methods, the effect, on the LR model, of changing the demarcation between adverse and favorable project DRS is also examined. For this examination, another LR model (Model 2) was developed. It is believed that Model 2 may reflect the prevailing sentiment that ADR is viewed as an amicable way to resolve disputes. Both the MDA model and LR models (Model 1 and Model 2) indicated that “design changes” are the root cause of adverse project DRS. Within the scope of the project data, these findings suggest that design changes are not just disruptive to project progress but also a critical cause of construction disputes.     

Case Studies on Negotiation and Mediation for Coastal Zone Conflicts

The cases detailed in this paper provide insight into the application of negotiation and other forms of alternative dispute resolution (ADR) to resolve heated disputes over the use of coastal resources. Three examples are provided to demonstrate the possible outcomes when ADR techniques are applied to resolve increasingly common coastal disputes. The first case between Chevron and the Surfrider Foundation is described to provide an example of how negotiation can result in unique innovative solutions that are unlikely to come out of normal legal proceedings. The second case involves the mediation of the disagreement between nature conservationists and the Dyke Associations in Jade Bay, Germany. This case provides an example of how a mediator can help disclose each party’s interests to transform an ongoing stalemated dispute into a unanimous agreement. The third case details the quarrel between the Surfrider Foundation and a coastal developer in Rincón, Puerto Rico, where the case was successfully negotiated but then later resulted in undesirable and unmitigated consequences for both parties.     

Structural Equation Model of Construction Contract Dispute Potential

This paper presents the results of a structural equation model (SEM) for describing and quantifying the fundamental factors that affect contract disputes between owners and contractors in the construction industry. Through this example, the potential impact of SEM analysis in construction engineering and management research is illustrated. The purpose of the specific model developed in this research is to explain how and why contract related construction problems occur. This study builds upon earlier work, which developed a disputes potential index, and the likelihood of construction disputes was modeled using logistic regression. In this earlier study, questionnaires were completed on 159 construction projects, which measured both qualitative and quantitative aspects of contract disputes, management ability, financial planning, risk allocation, and project scope definition for both owners and contractors. The SEM approach offers several advantages over the previously employed logistic regression methodology. The final set of structural equations provides insight into the interaction of the variables that was not apparent in the original logistic regression modeling methodology.     

Multiagent System for Construction Dispute Resolution (MAS-COR)

This paper develops theoretical foundation and implements technologies for generation of legal arguments based on precedent construction disputes. First, the authors simulated the process of legal discourse in construction disputes using a formal logic algorithm that is based on adversarial precedent law. In this regard: (1) facts associated with construction change order cases were factorized into binary, dimensional, and abstract factors; (2) relevance of the developed factors was associated with the disputing parties; (3) logical predicates and rules were generated based on the said factors; (4) factors were logically analyzed into distinct classifications; and (5) an 11 stage logical induction algorithm was used to show similarities, differences, strengths, and weaknesses between current and precedent construction disputes. Second, the authors created a multiagent system for construction dispute resolution (MAS-COR) that automates the developed algorithm. In this connection: (1) an agent-based role model was developed to represent the developed algorithms; (2) an agent-based role model was built to represent the developed algorithm; and (3) system implementation was carried using object-oriented programming on NetBean’s integrated development environment. Using 30 previously arbitrated construction disputes, testing and validation steps were rigorously applied to assess the developed formal logic algorithm as well as the associated created agents and their integration into the MAS-COR system through syntactical debugging using theorem proving, model checking, and system testing. The results of this validation process illustrated that the system was capable of deriving significant legal arguments that help save time and effort of construction claim and dispute professionals while preparing the defense for their respective positions.     

Asphalt Works Subcontracting Disputes in Large Construction Programs

Subcontracting is a common, and sometimes warranted, practice on large construction projects. However, it is also well recognized that disputes are likely to develop between subcontractors and general contractors in trying to achieve target objectives of cost, quality, and time. This paper tackles quality- and time-related disputes that are peculiar to the case of subcontracting asphalt works under a large construction program, such as that of a new airport construction. In particular, it reports on disagreements regarding the achieved thickness and surface smoothness of the constructed asphalt concrete layer, and on activity-interfacing and delay-attribution issues resulting from improper contractual and scheduling practices. Factors believed to be relevant to both classes of disputes are identified, and analyses are offered to pinpoint significant anomalies. Finally, arguments are developed and recommendations given, that reflect best industry practices whose application could help minimize the likelihood of facing such disputes in the future.     

Hybrid Model Incorporating Real Options with Process Centric and System Dynamics Modeling to Assess Value of Investments in Alternative Dispute Resolution Techniques

Project-specific dispute resolution ladders (DRLs) are typically implemented in construction projects to resolve issues arising between the project participants. The DRL typically consists of single or multiple alternative dispute resolution (ADR) techniques to address construction issues at the three levels of escalation: conflicts; disputes; and claims. However, a DRL requires significant investments to cover the direct costs incurred in-house by the project participants or, externally, if construction specialists and lawyers are recruited to assist in the resolution. Thus, the benefits of the DRL implementation in a construction project must outweigh its costs for the implementation to be worthwhile. This paper presents a methodology to study the effect of different resolution strategies on the value of the investment in a DRL using option/real option theories from financial engineering, process centric modeling, and system dynamics methodology. Of particular interest in this paper is the integration of these research methodologies into a computer model to support the evaluation of the DRL investment in a particular construction project by taking into account the characteristics of (1) the project and (2) the different ADR techniques chosen for the DRL implementation. Finally, an example is presented to illustrate the application of the computer model in a real construction project. The results of the simulation serve two main purposes. First, the results of the simulation are used to verify the intended model behavior in terms of proper integration of the three methodologies (i.e., real options, process centric, and system dynamics) in one computer system. Second, the model application to a real construction project using actual project data illustrates the potential of the model in providing the project participants with information related to the expected number of claims and change orders resolved at each level of the DRL, the change in the expected savings during the construction phase, and finally the value of the investment from the perspective of the project owner.     

Product Specification Practices and Problems

The technical product specifications of construction contracts and the associated submittal review processes are shown to be involved in a major portion of all serious project disputes. A large number of actual publicly‐funded water and wastewater treatment facility building projects were examined with subsequent analysis of those reviews indicating that these disputes are detrimental in terms of additional project cost, schedule delays, and overall project disruption and loss of goodwill. In particular, the proprietary “brand name or equal” product specification method is seen to be commonly at the heart of these product disputes. Several different solution strategies were expressed as statistical hypotheses and tested for effectiveness. Among other propositions, the managerial strategies of required bid listing of proposed products, timely dispute resolution, and clarifying the submittal review process proved to be realistic and effective tools for reducing both the incidence and severity of product‐related contract disputes. Exact details are put forward along with sensitivity ranges.     

Insight into Resolving Construction Disputes by Mediation/Adjudication in Hong Kong

Resolving construction disputes using an adversarial approach is considered to be in opposition of the maintenance of a harmonious relationship between two parties. The modern arbitration process may emulate the litigation proceeding leading to delay and cost escalation. During the past decade, the Hong Kong Government has implemented a mediation clause as an alternative mode for settlement of construction disputes. In this paper, the experience and insight into resolving construction disputes by integrating mediation and then arbitration in Hong Kong are highlighted. The state-of-the-art modern mediation process and its philosophical origins are reviewed. The shortcomings of the present system are pinpointed. The success of the adjudication now practiced in the United Kingdom may suggest that there is a place for another process of dispute resolution, which may help improve the situation. The prospect of the proposed mediation/adjudication and then arbitration mechanism is discussed with particular reference to the construction industry in Hong Kong.     

Disputes and Dispute Resolution Systems in Sino-Foreign Joint Venture Construction Projects in China

There has been a sharp increase in the number of Sino-Foreign Joint Venture (SFJV) construction projects in the People’s Republic of China since the 1990s. Despite the Chinese Government’s new measures for boosting foreign involvements, entering into the construction market remains problematic for many foreign contractors. One of the problems concerns construction disputes. In light of this, this paper reports a study on disputes and dispute resolution systems in SFJVs. A questionnaire survey of 41 practitioners in the field was carried out. The main purpose was to identify the most common sources of disputes and the most commonly used dispute resolution methods in SFJVs. Results show that the sources of construction disputes can be classified into three categories: contractual, cultural, and legal matters. The most commonly used dispute resolution methods are mediation and arbitration. These findings will give both Chinese and foreign contractors invaluable insights into disputes and dispute resolution systems in SFJV projects.     

Grandparents' visitation rights and custody

Grandparents have traditionally played a central role in the family kinship system. Today the altered patterns of marriage and parenting have had an impact on family structures, including intergenerational family relationships. Grandparent visitation statutes have been established in all 50 states to permit grandparents to seek court-ordered visitation with their grandchildren. Court-ordered visitation, over the objection of a custodial parent, is a controversial legal development that continues to be litigated. All states also have laws that authorize third-party custody, including grandparent custody, in certain circumstances. Grandparents are increasingly involved in third-party custody disputes with the parents of their grandchildren. These disputes most commonly involve grandparents who have already been raising their grandchildren for several years under an informal arrangement. These disputes may pit the child's and grandparents' interest in continuity and care against the parents' interest in family integrity. In other custody disputes grandparents are challenging the parents' fitness for custody. There are a number of different custodial relationships that can be created between grandparent and grandchild, including informal custody, foster care, guardianship, and adoption. In custody disputes between a grandparent and a parent, there may be a tension between awarding custody according to the parent's natural right and awarding custody according to the child's best interest.     

Transaction-Cost-Based Selection of Appropriate General Contractor-Subcontractor Relationship Type

Relationships between general contractors and subcontractors are generally formed on a project-by-project basis. However, because of the competitive nature of the construction industry, this traditional arrangement can result in adversarial relationships between general contractors and subcontractors, which can jeopardize potential or ongoing collaborative construction plans. To avoid this problem, close, long-term relationships between general contractors and subcontractors, as in strategic partnerships, must be established. Unfortunately, forming and sustaining such relationships can be time-consuming and cost-intensive. Furthermore, this type of relationship does not necessarily enhance cooperation or work performance. For contractors to successfully establish effective partnerships with their subcontractors, they must select the appropriate relationship by considering the different characteristics of the subcontracted work involved. Based on transaction cost theory, the findings of this study show that transaction costs incurred by general contractors and subcontractors vary according to the type of relationship established. Therefore, for the purpose of comparing transaction costs incurred in both competitive and partnership relationships, transaction-cost-based profit models for both general contractors and subcontractors are developed, respectively, for each relationship type. As well, by applying different strategies to maximize profits in each relationship, and by simulating the parameters affecting the nature of the subcontracted work, the conditions and relationships under which general contractors’ profits are optimized have been determined. Finally, based on simulation, practical guidelines for choosing the most appropriate relationship type are proposed.     

Legal Framework for Alternative Dispute Resolution: Examination of the Singapore National Legal System for Arbitration

Effectiveness of any alternative dispute resolution (ADR) method depends on the national legal system to which it is subjected. In Singapore, the increasing growth in the use of ADR methods may be adduced to developments in the Singapore legal environment. This paper reviews the characteristics of the Singapore national legal system for arbitration. It examines how the legal system facilitates effective use of ADR. By its features, the Singapore national legal system ensures parties’ autonomy but deters parties from taking opportunistic advantage of the voluntary nature of ADR. It enables procedural flexibility, and confidentiality of arbitration proceedings. It insulates the arbitration process from intervention from the Singapore courts and from corruption; and it provides maximum judicial support in the arbitral process. Hence, it ensures that disputes can be brought to a conclusion within a reasonable amount of time, at a reasonable cost, as well as preserving business relationships. The Singapore legal system insures the integrity of arbitration and the independence of arbitrators and arbitral institutions by immunity provisions. In addition, the legal system enhances the use of mediation and conciliation in a sequential tier with arbitration by providing a time limit for mediation or conciliation to terminate should they fail to produce a mutually acceptable settlement. In Singapore, the court system is generally known to be efficient; hence, ADR faces the practical challenge of becoming lengthier than court proceedings. The continuing search for and use of expedited arbitration procedures by arbitral institutions such as the Singapore International Arbitration Centre should reduce this challenge. This paper provides useful information on how a national legal system may be designed to support the use of ADR methods and facilitate their effectiveness.     

Perspective from the United States: Tensions between “Getting It Done” and “Getting It Right”

For over 2 decades, and in response to complaints that arbitration was too expensive and too time consuming, the American construction bar has been energetic and innovative in developing a broad array of dispute resolution tools for resolving construction disputes. These “tools” have included “partnering,” mandatory negotiations, interim decision making by design professionals, mediation, standing neutrals and dispute resolution boards, minitrials, early neutral evaluation, and expert determinations, all developed as alternatives to arbitration and litigation. More recently, in 2006, a voluntary “fast track” process for resolving construction disputes within 100?days has been proffered by the CPR Institute for Conflict Prevention and Resolution. Yet, there are certain dynamics or “tensions” inherent within, and associated with, all construction disputes that continue to resist efforts to speed up dispute resolution processes; these tensions must be reconciled or taken into account before any fast track or “adjudication”-type process will be generally accepted in the United States construction industry. Thus, for now and in the foreseeable future, there will continue to be a smorgasbord of dispute resolution processes for resolution of construction disputes. This is a good thing, because parties to construction disputes come with a great variety of appetites and needs. The focus of attention should be, not so much on development of the ideal or best dispute resolution tool, but having a willingness to select the “best tool for the job,” after the nature of the dispute is known.     

Exploring Critical Success Factors for Partnering in Construction Projects

The construction industry is a very competitive high-risk business. Many problems, such as little cooperation, lack of trust, and ineffective communication resulting in adversarial relationships between contracting parties, are facing the construction industry. Partnering is perhaps one of the most innovative developments in delivering a project efficiently and reducing construction disputes. It provides a sound basis for a “win-win” climate and synergistic teamwork. Project partnering in the Hong Kong construction industry has gained in popularity since 1994. A number of potential factors contributing to partnering success have emerged and deserve further study. This paper presents a review of the development of the partnering concept in general and identifies critical success factors for partnering projects from the Hong Kong perspective in particular. Through a postal questionnaire survey geared toward project participants with hands-on partnering experience, the opinions of various parties—clients, consultants, and contractors were sought and evaluated in relation to partnering success factors. The relationship between the perception of partnering success and a set of success factors hypothesized in the study was derived using factor analysis and multiple regression. The results indicated that certain requirements must be met for partnering to succeed. In particular, the establishment and communication of a conflict resolution strategy, a willingness to share resources among project participants, a clear definition of responsibilities, a commitment to a win-win attitude, and regular monitoring of partnering process were believed to be the significant underlying factors for partnering success. Such an identification of success factors could well formulate effective strategies for minimizing construction conflicts and improving project performance.