Masonry Magazine July 2001 Page. 36
ARMED FOR BATTLE
But how do you prepare for the unknown? Well, the truth is you can't - at least not entirely. Conflict has a way of arriving without warning and attempting to anticipate the size and scope of your next fight is about as easy as giving your wife the correct answer when she asks, "do these pants make me look fat?" It just isn't possible. So, the fine details of your next legal battle will likely have to be defined and dissected at the time. There is, however, something you can do right now about how this future dispute will be handled. You see, every major dispute need not end up in a courtroom.
Alternative methods for resolving conflicts exist all around the everyday contractor-contractors like you and me-that can help us sidestep potentially costly and lengthy litigation. One popular process is commonly known as ADR (Alternative Dispute Resolution). ADR is an "outside" dispute resolution procedure that can end up being less expensive, less time consuming, and less stressful on all the participants than is so with the conventional court system... yet still offers a fair and effective method for resolving construction industry conflicts. It pays to be prepared and know your options due to hefty legal fees.
A CHANGING TIDE
More and more each day, contracting professionals are finding ADR clauses included in their public and private bid packages, often in Division 1, "General Requirements" of the specification manual. Why the surge in ADR? Well, there are many likely reasons not the least of which is the negative past experiences by all parties to our present judicial court system. In the minds of many, our existing judicial system has simply grown too cumbersome, too expensive, too time-consuming, and inordinately stressful for handling the average contractor's (only) occasional legal scuffles.
As a defendant or plaintiff in a disputed case, the contractor (even if went to court and won) would still be out hundreds, thousands, or even hundreds of thousands of dollars in attorney and professional fees, lost time from his business, court costs, and much more and that doesn't even take into account the toll of stress and worry that accompanies a full-fledged legal battle. Also, remember that the owner (assuming it's an owner/contractor dispute) likely isn't making any payments on the project under dispute - further crippling the contractor's cash-flow. So, victory(?) in court can indeed end up being quite hollow win for the litigant builder. As a matter of opinion, it can often seem as though the only true victors in any lengthy litigation are the law firms who will extract their fees from the proceedings.
ADR (ALTERNATIVE DISPUTE RESOLUTION)
So enter Alternative Dispute Resolution. ADR sets out to correct (at least some of) these pitfalls, but be aware that the ADR process can range from a highly-structured and defined affair (more prevalent with public or state-funded construction projects) to a far more informal, negotiated exercise, such as with smaller, privately-owned projects. But the basic premise of ADR remains the same: allow the potential litigants themselves to have input into and (ultimately) streamline the dispute remediation process. Some of the more attractive attributes of ADR are:
* The process can be performed under private mediation or arbitration. This often helps to shrink the time-window for obtaining resolution from possibly years (in the courts) down to only months... or even weeks.
* In a nutshell, the participants get to choose their poison. The procedures, location, time frame, arbitrator/mediator-basically anything - can be negotiated by the participants.
* Confidentiality can actually be increased because the proceedings aren't open and available to public scrutiny.
* The process is simply more informal. Often, lawyers needn't be involved and the rules governing the affair are less restrictive than the courts.
* The traditional adversarial relationship between the combatants is tempered somewhat due to the abbreviated and calmer atmosphere fostered by ADR.
* The process is often less-expensive. From start to finish, ADR is often far less costly then going to court.
But still, ADR is no cakewalk. After all, this is dispute we're talking about and dispute has a way of generating unforeseen headaches. Though simpler by definition, ADR can still require considerable time, effort, and coordination on the part of all parties to bring it to an acceptable level of resolution. The main difference is that this time the procedures have been agreed to by all parties; everyone is on board. In fact, many people view the ADR process as a logical offshoot of partnering.
PARTNERING AND ADR
ADR is often a part of - and goes hand in hand with the construction management philosophy commonly known as partnering. In short, partnering (when applied to construction) can best be described as a management philosophy that attempts to improve construction project development, deployment, and management through (good old-fashion) teamwork by all parties involved. Partnering calls for the people and companies involved in a building project (the owner, general-contractor, subcontractor, suppliers, architect, and more) to enter into a formal agreement or covenant-vowing an atmosphere of trust, comraderie, and good faith.
The members then go on to develop a stated, written declaration of commitment, communication, and fellowship with the ultimate (admittedly Poly Anna-esque) goal being the eradication of disputes, misinterpretations, and misunderstandings that often permeate, plague and even-