Masonry Magazine July 2001 Page. 37
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MASONRY JULY, 2001 37
Actually poison many construction projects - which can often lead to costly claims, litigation, and just plain bad PR all around. Besides the covenant, details of the project- including construction costs, value engineering, contractor fees, scheduling... even dispute resolution (like ADR) - are discussed in open forum and are mutually ordained by all. This way, worries and concerns of all the parties are flushed out accounted for and may even act as a foundation for structuring an ADR agreement.
ADR-THE PROCESS
Basically, as a member of the ADR process, you agree to mediate or arbitrate all disputes before filing any formal legal action against another party, should a dispute occur. You may agree to submit to binding arbitration by a neutral third party (such as with that supplied by organizations such as the American Arbitration Association or perhaps a law firm that specializes in mediation/arbitration procedures. You might also have to agree that any lawsuit filed before the arbitration is commenced would be dismissed, although that still may not preclude the possibility of a lawsuit down the line.
The kind and level of mediation/arbitration procedure to be used will often depend on the size of the contract and claim in the dispute. For instance, the parties may agree to only invoke ADR if the claim is (perhaps) under $25,000; anything else would go through the normal system. Basically, it's up to you (the participants). The wording and structure of the agreement will almost certainly vary according to the size, type, and cost of the project, along with many other factors. Even the personalities of the players will have an effect - driven mostly by each individual's tolerance for risk.
Here are some other items that could be included in - or might affect - an ADR agreement:
• The level of procedure to be used. Basically, if the project is straight-forward and less-expensive, the ADR process might be correspondingly simple. As the project grows more costly and complex (and therefore riskier), the ADR would likely grow to include more provisions that would reflect the intricacies and concerns of a larger project.
• The method through which the impartial third party (to act as mediator/arbitrator) is chosen. Suffice it to say that this selection is quite important to the proceeding. This third party should, of course, not take sides in the dispute and be as genuinely impartial as possible. This selection process may even require the participants to interview and gather data on potential candidates.
• In addition to the mediator/arbitrator, you may even opt for another party to act as facilitator. The facilitator's job would be to administer the procedure itself not oversee it as judge and jury. This may or may not be the same person who acts as the neutral party (but it's probably a good idea to separate the two). This person would decide things such as when and how often the resolution meetings would be scheduled.
• Of course, the methods and procedures for payment,