IN THE PROFESSION
Choosing Arbitration : Dispute Resolution for Construction JENNY FLETCHER Construction Law Neutral Former Chair of the Construction Industry Practice Group at Eversheds Sutherland , now Sr . Counsel . Past President of American College of Construction Lawyers and an arbitrator for more than 30 years jennyfletcher @ eversheds-sutherland . com
C onstruction industry participants were early adopters of arbitration as an alternative to court litigation and trials . Because complex construction projects were almost always governed by contracts , the use of a private form of dispute resolution was easily accomplished except in public sector projects where contract forms were mandated . As early as 1888 , the early versions of the now commonly used American Institute of Architects ( AIA ) forms included arbitration as a default disputes forum , and other common industry forms followed suit . See comments to 2007 Revisions to AIA Contract Documents
In the early 2000s , however , industry participants began to question whether arbitration was actually “ faster , better , cheaper ” than court litigation . Litigants had expanded the scope of arbitration discovery , prehearing procedures , and the length of hearings to the point that construction arbitration was rivaling the cost and risk of going to court . Payment of an expensive arbitration panel for lengthy hearing engagements , cost of travel , and elaborate presentations added to the debate . The principal arbitration administration agencies promulgated “ expedited ” rules to attempt to address these criticisms . The AIA contract forms replaced arbitration as an automatic default resolution
14 NOVEMBER / DECEMBER 2024