CNST 420 - Chapter 20 Questions

How does arbitration differ from conventional resolution of disputes through court decisions?

Court decisions are made by jurors, most whom will not have any construction experience or expertise. Many of the common terms and procedures may not be understood by jurors, so the parties of the court case might not get the best outcome due to this inexperience. In arbitration, the decision is made by an individual or panel of individuals that are experienced in the construction industry. The decisions resulting from arbitration are made more quickly and are not one sided like many court cases. Arbitrators can solve a dispute by modifying the claims of each party and establish a common ground between them.

What are some advantages of using disputes review boards instead of litigation, arbitration, or mediation?

Disputes review boards are generally involved early in the disputes that arise on a project. The issues involving the dispute can generally be presented more clearly without the complications by loss of memory or the introduction of other project conflicts. If a dispute is resolved early, the smooth completion of other aspects of the project are less likely to be compromised by the conflict. This is also a less costly process as the dispute can be brought to the disputes review board before legal costs have been incurred. In essence, the decisions of the disputes review board are professional assessments of the merits of the opposing arguments. These assessments can be used as guidance by the disputing parties. Since the decisions are not binding, the disputing parties retain some control.

Compare the various means of resolving disputes in regard to time and cost.

In general, the most costly and time consuming procedure is to resolve dispute through formal litigation. In recent years, arbitration has also gained the reputation of being most costly than it once was and also of consuming large amounts of time, particularly when the arbitration panelists cannot coordinate their other professional activities to schedule a hearing. Relative to litigation and arbitration, the use of disputes review boards, mediation, and minitrials are less costly and they are quick means of establishing a settlement

What are some advantages of mediation compared with arbitration?

Mediation is not a time-consuming process in that it is often restricted to the duration of a single day while arbitration may take several weeks or even months to resolve. This reduction in time for mediation results in considerably reduced legal expenses in comparison to arbitration. An additional advantage is that the resolution of the conflict lies entirely with the disputing parties rather than with an individual or panel that is not part of the conflict.

What are some advantages of using minitrials for resolving disputes?

One of the primary advantages of minitrials is that the procedures for the minitrial can be tailored to the specific dispute. The disputing parties mutually establish the conditions for conducting the minitrial. One of the conditions often established is that of a limitation of the time permitted of the entire process. Limitations may also be imposed on the nature of the evidence to be presented. These conditions can be effective in minimizing the costs associated with resolving a dispute. An issue of fairness is often introduced when both parties are given equal restraints on matter of presentation, discovery, number of witnesses, etc.

What are the disadvantages of using disputes review boards to resolve construction disputes?

Since the decisions are not binding upon the disputing parties, the resolution of the conflict may still end up in the courts. Another disadvantage is that the process is not viable on small projects because the costs would be prohibitive.

What are some disadvantages of using minitrials for resolving disputes?

The decisions resulting from minitrials are not binding on the disputing parties. If a single judge is employed, it may be difficult to identify a truly impartial individual. While there maybe advantages in establishing rules of procedure for a minitrial, there is a disadvantage from the standpoint that there are not generally accepted procedures that can be modeled.

What are some of the most frequently cited disadvantages of resolving disputes through court decisions?

The legal costs are considerably high and the backlog of court cases delays some settlements for years. Once the lawsuit has commenced, direct communications between the disputing parties is brought to a halt, further assuring that the final settlements will be delayed

What are some disadvantages of mediation compared with arbitration?

The mediation process does not guarantee that the conflict will be resolved. If the disputing parties cannot establish a mutually agreeable settlement, the conflict remains to be resolved by another means. Arbitration decisions can be binding upon both parties. If the matter is not resolved by mediation, the mediator is under no obligation to discuss the merits of different arguments. During the mediation process, the mediator's role is to establish a forum for dispute resolution but the mediator's role does not involve assessing the relative strengths or weaknesses of each argument. Thus, few insights will be gained from the mediator that will be helpful if the conflict is brought to court or arbitration.