Introduction to Construction Dispute Resolution Feniosky Peña-Mora Gilbert W.Winslow Career Development Associate Professor of Information Technology and Project Management MIT Room 1-253, Phone (617) , Fax (617) Intelligent Engineering Systems Laboratory Center for Construction and Research Education Department of Civil and Environmental Engineering Massachusetts Institute of Technology Evolution of DART

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 2 Definitions WHAT Evolution of Alternative Dispute Resolution Procedures Implementation of Mediation, Conciliation and Dispute Review Boards WHO Worldwide Practice of ADR (e.g., Ancient Greece, China) WHY Understanding the Reason Behind ADR Procedures for their Effective Implementation HOW Review of the Traditional Dispute Resolution Ladder Study of the Six-step Dispute Resolution Ladder

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 3 Outline  Traditional Dispute Resolution in Construction Determination by the Design Professional Arbitration Modification of the Two-Step ADR Approach FIDIC’s ARD Contract Conditions World Bank’s ADR Contract Conditions Chek Lap Kok Airport’s Dispute Resolution System Evolution of the Present ADR Methodologies Data Supporting the Evolution of ADR Two Conceptualization Models of DART The State of the Legal Construction Arena

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 4 Traditional Dispute Resolution in Construction Two Tools for Dispute Resolution : 1 st Tool : Non-binding Determination of a Design Professional 2 nd Tool : Binding Arbitration (Alternative to Litigation) Negotiations to Fill the Gap between the Tools

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 5 Dispute Resolution Ladder Peña-Mora,et.al,2002

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 6 Outline Traditional Dispute Resolution in Construction  Determination by the Design Professional Arbitration Modification of the Two-Step ADR Approach FIDIC’s ARD Contract Conditions World Bank’s ADR Contract Conditions Chek Lap Kok Airport’s Dispute Resolution System Evolution of the Present ADR Methodologies Data Supporting the Evolution of ADR Two Conceptualization Models of DART The State of the Legal Construction Arena

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 7 Determination by the Design Professional A/E as Unbiased, Knowledgeable Third Party Resolver in Traditional DBB Projects Major Concern Leading to the Transformation: Biased A/E and very Complex Projects Generation of the Concepts of Neutral Advisors and Dispute Review Boards as Substitution to the A/E in the Traditional DRL

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 8 Outline Traditional Dispute Resolution in Construction Determination by the Design Professional  Arbitration Modification of the Two-Step ADR Approach FIDIC’s ARD Contract Conditions World Bank’s ADR Contract Conditions Chek Lap Kok Airport’s Dispute Resolution System Evolution of the Present ADR Methodologies Data Supporting the Evolution of ADR Two Conceptualization Models of DART The State of the Legal Construction Arena

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 9 Early Applications of Arbitration Arbitration Experiences in Greece: Fast Solutions Based on Knowledge and Experience, Flexibility and Finality Arbitration in Old England ( ): Evolution from a Purely Conciliatory Process to an Adjudicative System

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 10 Arbitration in the Construction Industry Arbitration as Substitute to Litigation in Many Association Standard Contracts (e.g. AIA, AGC, CIOB, WB and FIDIC) Arbitration Becoming an Adversarial Procedure Due to Increasing Pressures and Strains

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 11 Problems with Arbitration Problems Reflected in ABA ResultsArbitration Features 1. Problems regarding the speed and efficiency of arbitration in larger cases, which made arbitration expensive. (Economy and Flexibility) 2. Need to consider mechanisms to deal with multi- party disputes. (Flexibility) 3. Problems regarding the quality of construction arbitrators. (Economy, Knowledge- based decisions and Flexibility) 4.The need to support greater use of preliminary hearings and pre-arbitration orders to organize and expedite the actual procedure (Economy) 5. The need to increase the power of the arbitrator to order sanctions for delays and ‘non-cooperation’. (Economy and Flexibility) 6. Objections as to the appropriateness of a written award by the arbitrator explaining the reasons for the decision. (Privacy) Stipanowich 1996

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 12 Confucian Philosophy A Common Ground for Negotiating Settlement and Preserving the Harmonious Relationship Dispute Resolution Process Based on “…the Confucian view that the optimum resolution of a dispute should be attained by moral persuasion and compromise instead of by sovereign coercion” (Chau,1992)

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 13 Outline Traditional Dispute Resolution in Construction Determination by the Design Professional Arbitration Modification of the Two-Step ADR Approach  FIDIC’s ADR Contract Conditions World Bank’s ADR Contract Conditions Chek Lap Kok Airport’s Dispute Resolution System Evolution of the Present ADR Methodologies Data Supporting the Evolution of ADR Two Conceptualization Models of DART The State of the Legal Construction Arena

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 14 FIDIC, 1957 (Federation Internationale des Ingenieurs-Conseils) Deferment of Claims Resolution Until the End of the Project Implementation of the Two-step Traditional DRL A/E Determination Arbitration

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 15 FIDIC’s ADR Contract Conditions Shift toward Early Treatment of Claims in New Editions (Starting in 1987)  Claims Notification Process Introduction of the Requirement to Attempt an “Amicable Settlement” before Arbitration

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 16 Outline Traditional Dispute Resolution in Construction Determination by the Design Professional Arbitration Modification of the Two-Step ADR Approach FIDIC’s ARD Contract Conditions  World Bank’s ADR Contract Conditions Chek Lap Kok Airport’s Dispute Resolution System Evolution of the Present ADR Methodologies Data Supporting the Evolution of ADR Two Conceptualization Models of DART The State of the Legal Construction Arena

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 17 World Bank’s ADR Contract Conditions Dispute Review Board (DRB) to Replace the Engineer or Review his/her Decisions before Arbitration in Complex Contracts Adjudicator to Resolve Disputes in the First Instance in Small Contracts (Instead of A/E) Appointed Jointly by the Owner and the Contractor to Resolve Disputes Adjudicator’s Decision to Be Submitted within 28 Days of the Dispute Adjudicator’s Decision Becoming Final and Binding if not Deferred to Arbitration within 28 Days of Its Receipt

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 18 Outline Traditional Dispute Resolution in Construction Determination by the Design Professional Arbitration Modification of the Two-Step ADR Approach FIDIC’s ARD Contract Conditions World Bank’s ADR Contract Conditions  Chek Lap Kok Airport’s Dispute Resolution System Evolution of the Present ADR Methodologies Data Supporting the Evolution of ADR Two Conceptualization Models of DART The State of the Legal Construction Arena

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 19 Dispute Resolution for Government Contracts in Hong Kong (1998) Architect/Engineer or Supervising Officer MediationArbitration Parties have 28 days to refer the matter to mediation Parties can request arbitration 90 days after failing to agree through mediation, but not before the job is complete 123

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 20 Chek Lap Kok Airport’s Dispute Resolution System (1998) A Adjudicator has 28 days to issue a final and binding determination from the time mediation fails Parties have 28 days to refer the matter to mediation Architect/Engineer or Supervising Officer 1 Mediation Mediator issues final report 2 Adjudication 3 Arbitration Completion of the works is required 4 Dispute Review Group (DRG) If either party objects to the decision of the adjudicator, they can submit the dispute to arbitration, subject to the completion of the work Parties have 42 days to resolve the matter through mediation B

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 21 Chek Lap Kok Airport’s Dispute Resolution Group(1998) The Convenor, Chairman Retired High Court Judge Quantity Surveyor from the UK Civil Engineer from the UK Arbitration Expert from the People’s Republic of China Electrical/ Mechanical Engineer from the UK Civil Engineer from the UK Arbitration Expert from the People’s Republic of China Legal Background Technical Expertise Government Representation

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 22 Outline Traditional Dispute Resolution in Construction Determination by the Design Professional Arbitration Modification of the Two-Step ADR Approach FIDIC’s ARD Contract Conditions World Bank’s ADR Contract Conditions Chek Lap Kok Airport’s Dispute Resolution System Evolution of the Present ADR Methodologies  Data Supporting the Evolution of ADR Two Conceptualization Models of DART The State of the Legal Construction Arena

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 23 Data Supporting the Evolution of ADR Growth of ADR in the US Court System and Success of Court-Annexed Procedures in the Early Resolution of Disputes Use of ADR in the US Promoted by the Dispute Resolution Act of 1998 Surveys by ABA Confirming the Increasing Use of DART in Construction, mainly Arbitration (most Familiar) and Mediation (most Favorable) Popularity of ADR in Public and Private Contracts

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 24 ADR in US Corporations ADR Method Percent of Respondents Who Had Experience with this Method of ADR Percent of Respondents Who Expect to Use this Method of ADR in the Future Mediation88%84% Arbitration79%69% Med/Arb41%Data not Available Mini-trials23%Data not Available Fact Finding21%Data not Available Peer Review11%Data not Available Lipsky et al., 1997

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 25 Outline Traditional Dispute Resolution in Construction Determination by the Design Professional Arbitration Modification of the Two-Step ADR Approach FIDIC’s ARD Contract Conditions World Bank’s ADR Contract Conditions Chek Lap Kok Airport’s Dispute Resolution System Evolution of the Present ADR Methodologies Data Supporting the Evolution of ADR  Two Conceptualization Models of DART The State of the Legal Construction Arena

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 26 Differentiation between Conflicts and Disputes Conflict Avoidance Informal Discussion Negotiation ADR Arbitration Litigation Other Action Dispute Resolution Conflict Management Fenn et al., 1997

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 27 Conflict Management and Dispute Resolution Techniques Conflict Management Non-Binding Procurement Systems Partnering Quality Matters Total Quality Management Coordinated Project Information Quality Assurance Negotiation Dispute Review Advisors Dispute Review Boards Dispute Resolution Non-Binding Binding Conciliation Negotiation Mediation Expert Determination Executive Tribunal Arbitration Adjudication Litigation Fenn et al., 1997

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 28 Six-step DRL  Increased expenses and hostility.  Less participation of the team directly involved in the project.  Less alternative mechanisms to solve the dispute  Reduced flexibility and less control over final outcome. PREVENTION NEGOTIATION STANDING NEUTRAL NONBINDING BINDING LITIGATION Fenn et al., 1997

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 29 Outline Traditional Dispute Resolution in Construction Determination by the Design Professional Arbitration Modification of the Two-Step ADR Approach FIDIC’s ARD Contract Conditions World Bank’s ADR Contract Conditions Chek Lap Kok Airport’s Dispute Resolution System Evolution of the Present ADR Methodologies Data Supporting the Evolution of ADR Two Conceptualization Models of DART  The State of the Legal Construction Arena

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 30 The State of the Legal Construction Arena Litigation Culture Dominating the Legal Scene in the UK and the US and Numerous Problems Associated with it (e.g., Costs, Delays and Unfairness) Factors Reshaping the Traditional Dispute Resolution Process in the UK and the US General Dissatisfaction with Arbitration Increase in the Number of Conflicts and Disputes in Construction International Trend toward ADR Methods Big Losses in Legal Battles Triggering the Implementation of Dispute Avoidance and Resolution Techniques (DART)

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 31 Outline Traditional Dispute Resolution in Construction Determination by the Design Professional Arbitration Modification of the Two-Step ADR Approach FIDIC’s ARD Contract Conditions World Bank’s ADR Contract Conditions Chek Lap Kok Airport’s Dispute Resolution System Evolution of the Present ADR Methodologies Data Supporting the Evolution of ADR Two Conceptualization Models of DART The State of the Legal Construction Arena

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 32 Summary The traditional two-step resolution ladder stems from ancestral dispute resolution forms. The traditional model did not allow an efficient dispute resolution in complex projects. New strategies are adopted for a spectrum of conflicts (conflict continuum). The DRL is adopted to prevent and resolve disputes.

© Peña-Mora, et. al. 2002Introduction to Construction Dispute Resolution Chapter 2: Evolution of DART 33 References [Beresford Hartwell, 1998] : Beresford Hartwell, Geoffrey M., (1998). The Relevance of Expertise in Commercial Arbitration. " Arbitration Procedures: Achieving Efficiency Without Sacrificing Due Process." Last Update: 22 June. Paris. Downloaded from the web on April 5, [Bristow, 1998] : Bristow, David. The New CCDC2: Facilitating Dispute Resolution of Construction Projects. A paper delivered to the Canadian Bar Association – Ontario. December, [CCDC 2, 1994] : Standard Construction Document. CCDC 2: Stipulated Price Contract. Canadian Construction Documents Committee. June [Chau, 1992] : Chau, Kwok-Wing, (1992). Resolving Construction Disputes by Mediation Hong Kong Experience. Journal of Management in Engineering Vol. 8 (4) pp October, [Civil Engineering, 1994] : Civil Engineering, (1994). State DOTs Tackle Problem Projects. March 19 [DRT, 1/1999] : Dispute Resolution Times, (1999). New Law Authorizes ADR Use in District Courts. p. 2. January [DRT, 4/1998] : Dispute Resolution Times, (1998). NJ Law Calls for ADR in Public Construction Projects. p. 14 April [ENR, 4/22/1996] : Engineering News Record. The First Step is the Hardest. Vol. 236 (16). p April 22, [ENR, 7/11/1994] : McManamy, Rob. Industry Pounds Away at Disputes. Engineering News Record. McGraw-Hill, New York. pp July 11, [Fenn et al., 1997] : Fenn, Peter, Lowe, David, and Speck Christopher, (1997). Conflict and Dispute in Construction. Construction Management and Economics (1997) 15, p. 513 [Fenn et al., 1998] : Fenn, Peter, O’Shea Michael, and Davies Edward (1998). Dispute Resolution and Conflict Management in Construction an International Review. E & FN Spon, London, ISBN [FIDIC, 1957] : FIDIC. Conditions of Contract for Works of Civil Engineering Construction, First Edition, [FIDIC, 1987] : FIDIC. Conditions of Contract for Works of Civil Engineering Construction, Fourth Edition, 1987 (reprinted in 1988 with editorial amendments and reprinted in 1992 with further amendments) [Findley, 1997] : Findley, Douglas. Construction Claims Preparation Under ADR AACE International Transactions C&C.01.1-C&C [Flood et al., 1993] : Flood J. and Caiger A. Lawyers and Arbitration: The Juridification of Construction Disputes. Modern Law Review. Vol 56. pp c Blackwell Publishing, Reprinted with permission of Blackwell Publishing. [Goudsmit, 1985] : Goudsmit, J. J. Frame Contracts and the Closing of the Eastern Scheldt. The International Construction Law Review Vol. 2 (2) pp January [Gould, et al.,1998] : Gould, Nicholas and Cohen, Michael. ADR: Appropriate Dispute Resolution in the U.K. Construction Industry. Sweet & Maxwell, London. Vol. 17. April [Groton, 1997] : Groton, James. ADR in the Construction Industry. Dispute Resolution Journal Vol. 52 (3) pp , Summer, [Ide, 1993] : Ide III, William R., (1993). ADR: Giant Step Toward the Future. Dispute Resolution Journal pp , December [King et al., 1994] : King, Henry T., and Le Forestier, Marc A., (1994). Arbitration in Ancient Greece. Dispute Resolution Journal. pp September [Li, 1970] : Li, V.H. The role of law in communist China. China Quarterly. No. 44, October-December, pp [Lipsky et al., 1997] : Lipsky, David B., and Seeber, Ronald, (1997). The Use of ADR in U.S. Corporations: Executive Summary. Cornell University School of Industrial and Labor Relations. Downloaded from the web on April 25, [Meade, 1997] : Meade, Robert C., (1997). Commercial Division ADR: A Survey of Participants. New York Law Journal p. 1. October 17 [Michel, 1998] : Michel, Henry. The Next 25 Years: The Future of the Construction Industry. Journal of Management in Engineering. Pp September/October, [Molineaux, 1995] : Molineaux, Charles B., (1995). Settlements in International Construction. Dispute Resolution Journal Vol. 50 (3) pp Jul-Sep [Moore, 1989] : Moore, C. The Mediation Process. Jossey Bass, San Francisco [Overcash, 1998] : Overcash, Allen. The Truth about Partnering. Limitations and Solutions. Punch List Vol. 21 (2) August, [Peña-Mora et al, 2002] : Peña-Mora, F., Sosa, C., and McCone, S. Introduction to Construction Dispute Resolution. Prentice Hall, New Jersey, 2002 [Pierce, 1994] : Pierce, Lemoine D., (1994). Mediation Prospers in China. Dispute Resolution Journal pp June [Scott, 1995] : Scott, Donahey M., (1995). Seeking Harmony. Technique Dispute Resolution Journal. pp April-June [Seppala, 1991] : Seppala, Christopher. Contractor's Claims Under the FIDIC Civil Engineering Contract, Fourth (1987) Edition II. International Business Lawyer Vol. 19 (9). Pp Q49October [Stipanowich et al., 1992] : Stipanowich, Thomas J. and Henderson Douglas, (1992). Settling Construction Disputes with Mediation, Mini-trial and Other Processes. The ABA Forum Survey, Construction Lawyer, April [Stipanowich, 1994] : Stipanowich, Thomas J., (1994). The Quiet Revolution in Government Contracting: Dispute Avoidance and Resolution. 30 Procurement Lawyer 3 [Stipanowich, 1996] : Stipanowich, Thomas J., (1996). Arbitration: Innovation and Evolution in the United States Construction Industry. Wake Forest Law Review Vol. 31 (1) pp Spring [Sweet, 1994] : Sweet, Justin. Legal Aspects of Architecture, Engineering and the Construction Process. 5th ed. St. Paul: West Publishing Company, [Treacy, 1995] : Treacy, Thomas B., (1995). Use of ADR in the Construction Industry. Journal of Management in Engineering Vol. 11 (1) pp January/February, [Woolf, 1996] : Lord Woolf. Access to Justice: Final Report to the Lord Chancellor on the civil justice system in England and Wales. The Lord Chancellor's Department. July, [Yarn, 1995] : Yarn, Douglas Hurt. Commercial Arbitration in Olde England ( ). Dispute Resolution Journal, pp , January 1995.