Construction Engineering 380
Dispute Resolution
Termination
Dispute Resolution
• Arbitration as an alternate to litigation gained
favor in the 1920’s with legislation aimed at
– making agreements to arbitrate binding,
– using the enforcement power of the court to compel
relief,
– halting litigation of arbitration claims,
– using the court system to appoint and designate
“impartial” arbitrators,
– Limiting court power to review findings of fact and law
– Setting procedural rules and defects for invalidation,
– Placing a limitation on time to challenge
Dispute Resolution
• Federal arbitration laws are most often
given precedence in jurisdictional disputes
• Parties should agree on arbitration
jurisdiction and format ahead of time
• Courts mainly become involved if equity or
parties is in question
• Arbitration does not set precedent like a
litigated case would
Dispute Resolution
• Arbitration is voluntary system of resolving
disputes without court involvement- therefore, it
is much like a contract
– Manifestation of mutual assent- signatories
– Jurisdictional definition and conference- fact versus
law, conditions, etc.
– Timeliness and notification
– Statutory and judicial compliance
– Waiver rights
– Must not be unconscionable or exculpatory
Dispute Resolution
• Pre-hearing activities
– Filing of notice with arbitrator
– Discovery and issues of fact
– Advance submission (for complex cases)
Dispute Resolution
• Selection of Arbitrator is usually spelled
out in the contract clause as a procedure
• Place of arbitration is usually not in the
clause, although there can be a statement
of factors influencing locale
• Multi-party arbitration– Joinder- adding a party to the arbitration
– Consolidation- combining several arbitration
cases into one
Dispute Resolution
• Hearing phase– Establishment of issues
– Waiver requests
– Schedule of process
– Due notice (can proceed without one party)
– Disclosure and conflict of interest
– Rules of conduct
– Opening statement
Dispute Resolution
• Hearing phase cont.
– Production of evidence- subpoena
– Documentary evidence
– Questioning of witnesses
– Site inspection
– Ex parte communication- can’t communicate
in secret with the arbitrator
– Reopening for additional or new evidence
Dispute Resolution
• Substantive standards are typically used
instead of case precedent
• Possible remedies are spelled out in the
clause ahead of time (use of security,
property, escrow, deposits, etc.)- usually
monetary award, but sometimes
performance or expansionary effort can be
included
Dispute Resolution
• Award is given in a short reasoned
statement without a lot of explanation
• Enforcement of award is turned over to the
courts as a civil matter
• Insurers and sureties are often exposed in
arbitration without defense or participation.
This is problematic, and will probably have
to be handled with statutory process
Dispute Resolution
• Arbitration is probably most common and most
effective dispute resolution technique, but there
are others:
– Mediation- try to make suggestions and facilitate
discussion
– Mediated arbitration- mediate for some designated
time, but then mediator gets to decide
– Mini-trial
– Review boards- expert panel, more common in large
H&H jobs
Dispute Resolution
• Judicial adjuncts– Court appointed “deputies” to help resolve a
dispute- special master or referee
– Summary trial- non-binding jury decision or
mock trial to use as a basis for determining
whether to go through with an actual trial