Alternative Dispute Resolution in Construction

**Alternative Dispute Resolution (ADR) #

** A set of processes, methods, and techniques used to resolve disputes without litigation. ADR includes negotiation, mediation, arbitration, and other hybrid forms of dispute resolution.

* **Negotiation #

** A process in which parties in a dispute communicate directly with each other to reach a mutually acceptable agreement. Negotiation can be conducted with or without the presence of a neutral third party.

* **Mediation #

** A process in which a neutral third party, the mediator, facilitates communication between the parties to help them reach a mutually acceptable agreement. The mediator does not make decisions or impose solutions but helps the parties to identify their interests and explore options for resolution.

* **Arbitration #

** A process in which a neutral third party, the arbitrator, hears evidence and makes a binding decision to resolve the dispute. Arbitration can be binding or non-binding, depending on the agreement of the parties.

* **Hybrid forms of ADR #

** Combinations of different ADR processes, such as med-arb (mediation followed by arbitration) or arb-med (arbitration followed by mediation).

**Arbitral Award #

** The decision made by an arbitrator or a panel of arbitrators in an arbitration proceeding. An arbitral award is binding on the parties and enforceable in court.

* **Final Award #

** The final and binding decision made by an arbitrator or a panel of arbitrators in an arbitration proceeding.

* **Interim Award #

** A decision made by an arbitrator or a panel of arbitrators during the arbitration proceedings, usually to resolve a specific issue or to preserve the status quo.

* **Partial Award #

** A decision made by an arbitrator or a panel of arbitrators in an arbitration proceeding, resolving one or more but not all of the claims or issues in dispute.

**Arbitration Clause #

** A provision in a contract that requires the parties to resolve any disputes through arbitration.

* **Mandatory Arbitration Clause #

** A provision in a contract that requires the parties to resolve any disputes through arbitration, without giving them the option to opt-out or choose another form of dispute resolution.

* **Permissive Arbitration Clause #

** A provision in a contract that gives the parties the option to resolve any disputes through arbitration, instead of litigation.

**Arbitration Proceedings #

** The steps and procedures involved in an arbitration, including the selection of the arbitrator, the exchange of information and documents, the hearing, and the issuance of the arbitral award.

* **Selection of the Arbitrator #

** The process of choosing an arbitrator or a panel of arbitrators to hear and decide the dispute. The selection can be made by the parties, by an arbitration institution, or by a court.

* **Exchange of Information and Documents #

** The process of disclosing relevant information and documents to the other party and the arbitrator, in accordance with the rules of the arbitration proceeding.

* **Hearing #

** The process of presenting evidence and arguments to the arbitrator, either in person, by telephone, or by videoconference.

* **Arbitral Award #

** The decision made by the arbitrator or the panel of arbitrators, setting forth the terms of the resolution of the dispute.

**Challenge to Arbitral Award #

** A request to a court to set aside or vacate an arbitral award, based on specific grounds such as bias, fraud, or corruption.

* **Grounds for Challenge #

** The legal reasons for challenging an arbitral award, such as lack of jurisdiction, violation of public policy, or procedural irregularities.

* **Standard of Review #

** The level of scrutiny applied by a court in reviewing an arbitral award, which can vary depending on the jurisdiction and the grounds for challenge.

**Confidentiality #

** The obligation of the parties, the arbitrator, and any other participants in the arbitration to keep the proceedings and the arbitral award confidential.

* **Confidentiality Agreement #

** A written agreement between the parties and other participants in the arbitration, specifying the terms and conditions of confidentiality.

* **Exceptions to Confidentiality #

** Certain situations in which confidentiality may not apply, such as disclosure required by law or court order, or disclosure necessary to protect a party's legal rights.

**Costs #

** The fees and expenses associated with an arbitration, including the arbitrator's fees, the parties' attorneys' fees, and the administrative costs of the arbitration institution.

* **Costs Allocation #

** The process of dividing the costs of the arbitration between the parties, based on the arbitration rules or the agreement of the parties.

* **Security for Costs #

** A request for a party to provide a deposit or a guarantee to cover the costs of the arbitration, in case the party is unable or unwilling to pay.

**Mediation Clause #

** A provision in a contract that requires the parties to attempt mediation before resorting to arbitration or litigation.

* **Mandatory Mediation Clause #

** A provision in a contract that requires the parties to attempt mediation as a condition precedent to arbitration or litigation.

* **Permissive Mediation Clause #

** A provision in a contract that encourages the parties to attempt mediation but does not make it mandatory.

**Multi #

tier Dispute Resolution Clause:** A provision in a contract that requires the parties to attempt different forms of dispute resolution, in a specific sequence, before resorting to arbitration or litigation.

* **Two #

tier Dispute Resolution Clause:** A provision in a contract that requires the parties to attempt negotiation and mediation before resorting to arbitration.

* **Three #

tier Dispute Resolution Clause:** A provision in a contract that requires the parties to attempt negotiation, mediation, and expert determination before resorting to arbitration.

**Neutral Evaluation #

** A process in which a neutral third party, usually an expert in the field, provides an evaluation of the strengths and weaknesses of each party's case, to facilitate settlement or to narrow the issues in dispute.

* **Early Neutral Evaluation #

** A process in which the neutral evaluation takes place at an early stage of the dispute, to encourage settlement or to avoid unnecessary litigation.

* **High #

Low Agreement:** A settlement agreement in which the parties agree on a range of possible outcomes, with a minimum and a maximum amount, to reduce the risk and the uncertainty of the arbitration or litigation.

**Standard of Review #

** The level of scrutiny applied by a court in reviewing an arbitral award or a settlement agreement, which can vary depending on the jurisdiction and the circumstances of the case.

* **De Novo Review #

** A standard of review in which a court reviews the merits of the case without deference to the arbitrator's or the mediator's decision.

* **Abuse of Discretion Standard #

** A standard of review in which a court reviews the arbitrator's or the mediator's decision for any errors of law or manifest disregard of the evidence, but defers to the arbitrator's or the mediator's discretion on issues of fact or procedure.

**Stay of Litigation #

** A court order suspending or halting litigation, to allow the parties to pursue arbitration or mediation.

* **Automatic Stay #

** A stay of litigation that takes effect automatically, without the need for a court order, when the parties have agreed to arbitration or when a valid arbitration clause exists.

* **Discretionary Stay #

** A stay of litigation that is granted or denied by a court, based on the specific circumstances of the case and the applicable legal standards.