How to Avoid and Resolve Disputes over Delays and Disruptions - 6

mediator. If that is not possible, the parties should at least
agree on a procedure for selecting an expert, if needed,
at a later point in time.
* If they take this approach, the parties will also need to
establish ground rules for the mediation. Rather than
establish an original set of such rules, they may, however,
prefer to identify and adopt guidelines that the AAA or
a similar administrator of dispute resolution procedures
has already developed.
* It is common for the parties to share the cost of any
mediation, including the cost of retaining a neutral
expert.
6. Depending on the size and complexity of the project, the
contractor may want to seek an agreement to appoint a
dispute resolution board (DRB) that will typically have
the power, much like a neutral reviewer, to hold hearings
and make written but non-binding recommendations
relating to entitlement and/or the costs that the delay
or disruption required the contractor to incur. Such a
board typically has three independent and impartial
members that the parties select and engage prior to the
start of construction. In addition, it typically meets on
some regular schedule over the course of construction,
monitoring the progress of the project, spotting problems in real time and proactively helping the parties
address and resolve problems before they escalate into
disagreements.
* If they take this approach, the parties will have to
make many of the same decisions that mediation would
require them to make. They will have to determine the
scope and/or size of the disagreements that the DRB
will have the power to resolve, and they will have to
establish ground rules for board review. Rather than
establish an original set of such rules, they may, however, prefer to identify and adopt guidelines that the
AAA or a similar administrator of dispute resolution
procedures has already developed.
* The parties will also have to decide whether direct
discussions, mediation or other dispute resolution
procedures will be conditions precedent to DRB review
of any disagreements.
* The parties will also have to agree, in advance of any
claims or disagreements, on the members of the board.
One option is for each of the parties to select a member and then empower those two members (selected
by the parties) to select the third member. Given the
frequency and complexity of claims for delay and/or
disruption, the contractor may want to seek agreement
that at least one member of the DRB will have expertise
in construction scheduling and/or productivity.
* The parties will also have to address whether the DRB's
recommendation will be admissible in any subsequent
proceedings.
* The parties could, in fact, authorize the DRB to make
binding recommendations, if not for resolving all

disagreements, then at least for resolving any disagreements that fall below a certain threshold. The parties
could also decide to make DRB recommendations binding
on an interim basis, pending recourse to binding arbitration, to litigation or to some other binding procedure
for resolving the dispute.
* Like the benefits of selecting a neutral project scheduler
or a neutral reviewer, the benefits of a DRB accrue to all
of the participants in the project, and for that reason, it
is fair and logical for the project itself to bear the cost.
B. BINDING OPTIONS
In addition to these non-binding options, contractors have at
least two options that will be binding on the parties. These
options include the following.
1. The contractor can seek agreement to submit any claims for
delay and/or disruption to binding arbitration.
* If they take this approach, the parties will have to make
many of the same decisions that a neutral reviewer, mediation and/or a DRB would require them to make. They will
have to determine the scope and/or size of the disagreements that will be subject to arbitration and establish
ground rules for arbitration. Rather than establish an
original set of such rules, the parties would, once again,
have the option of identifying and adopting guidelines that
the AAA or a similar administrator of dispute resolution
procedures has already developed.
* The parties will also have to decide whether to engage a
single arbitrator or a panel of arbitrators. If they decide on
a panel, they will also have to decide on its composition
(whether attorneys, retired judges or construction or other
experts) and whether a panel engaged to resolve a claim
for delay or disruption claims will include an expert in the
relevant subject.
* If it is possible for them to do so, the parties should also identify and preselect, in advance of any disagreement, several
arbitrators and, perhaps, experts acceptable to both parties.
If this is not possible, the parties should at least agree upon
on a procedure for selecting these individuals at a later point
in time.
* The parties also have to decide whether direct discussions,
mediation or other dispute resolution procedures will be
conditions precedent to arbitration.
* The parties also have to decide how to allocate or share
the cost of the arbitration.

The best practice is to incorporate
well-crafted standards and
procedures for resolving disputes
over delays and/or disruptions into
the contract between the parties.



Table of Contents for the Digital Edition of How to Avoid and Resolve Disputes over Delays and Disruptions

How to Avoid and Resolve Disputes over Delays and Disruptions - Intro
How to Avoid and Resolve Disputes over Delays and Disruptions - 1
How to Avoid and Resolve Disputes over Delays and Disruptions - 2
How to Avoid and Resolve Disputes over Delays and Disruptions - 3
How to Avoid and Resolve Disputes over Delays and Disruptions - 4
How to Avoid and Resolve Disputes over Delays and Disruptions - 5
How to Avoid and Resolve Disputes over Delays and Disruptions - 6
How to Avoid and Resolve Disputes over Delays and Disruptions - 7
How to Avoid and Resolve Disputes over Delays and Disruptions - 8
How to Avoid and Resolve Disputes over Delays and Disruptions - 9
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