Dispute Resolution Processes - Design-Build for Water and Wastewater Projects - page 298

Table 24-1. Alternative dispute resolution processes common to DB projects
Type

Description

Partnering This process uses a facilitator to help create and maintain a cooperative

relationship among all parties on the construction project. It has been
used for decades and is particularly well suited for resolving conflicts
on DB projects (Brierley, Corkum, and Hatem 2010).

Stepped
Negotiations

In this process, the parties attempt to resolve their problems at the
project level—generally by starting with the project managers, and
eventually raising the dispute to senior representatives of the parties.
A successful process envisions that the parties meet and negotiate
within a reasonably short period of time and that the representatives
(particularly those who are most senior) are objective and open to
compromise.

Mediation This process involves the assistance of a neutral (i.e., the mediator) to

help the parties reach agreement on their disputes. The sessions
with the mediator are confidential, and each party is expected
to have the appropriate representative who has the authority to
resolve the dispute. The mediation process is, in essence, a structured
negotiation: therefore, success is dependent on the same factors
previously mentioned for stepped negotiations, as well as the skill of
the mediator.

Mini-Trial This process combines the features of both the stepped negotiation and

mediation process. A mini-trial is a structured settlement procedure
where the parties present, in a summary fashion, their key positions to
a panel of judges. The judges typically include senior representatives
of each party, along with a neutral third party who has a function
similar to that of the mediator. The three judges can either reach a
decision or use their time together, with the benefit of the neutral, to
find a compromise.

Dispute Review
Board (DRB)

DRBs have a long history of use on large civil construction projects.
The DRB is composed of a panel of three neutral, experienced
construction experts. The panel is created at the outset of the project,
before any disputes have arisen, and meets with the parties on a
regular basis to keep apprised of the project's progress. The goal of
these meetings is for the panel to be ready and available to provide
a recommendation when a dispute arises. Disputes are presented to
the DRB in a summary fashion, often without lawyers, and the panel
provides a written recommendation of how the dispute should be
resolved. The DRB process is very flexible. Some of the more recent
DRBs use the panel for informal, advisory opinions on potential
disputes, without requiring the submission of a formal request for
hearing (Dettman and Kane 2011)

Other Uses of
Neutrals

A variety of other nonbinding processes are used to resolve DB
disputes, all involving the use of one or more neutrals selected at the
outset of the project. These processes, sometimes called early neutral
evaluation, standing mediators, standing arbitrators, or adjudicators ,
offer insight into the merits of claims, reasonable settlement ranges,
and an objective view of the merits of proceeding forward.