American Society of Civil Engineers


Engineer’s Study Notes for Understanding the Arbitration Process


by Patricia D. Galloway, Ph.D., P.E., (corresponding author), F.ASCE, (CEO, Pegasus Global Holdings, Inc., 1750 Emerick Rd., Cle Elum, WA 98922; ASCE President 2004; and Member, AAA Commercial, Construction, Large Complex Case, and ICDR Panels E-mail: p.galloway@pegasus-global.com) and Kris R. Nielsen, Ph.D., J.D., M.ASCE, (Chairman and President, Pegasus Global Holdings, Inc., 1750 Emerick Rd., Cle Elum, WA 98922; and Member, AAA Commercial, Construction, Large Complex Case, and ICDR Panels.)

Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, Vol. 3, No. 2, May 2011, 71-78 pp., (doi:  http://dx.doi.org/10.1061/(ASCE)LA.1943-4170.0000065)

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Document type: Scholarly Paper
Special Issue: Construction Dispute Resolution
Abstract: Using arbitration to resolve commercial disputes has many advantages over court-based litigation. These include the use of "judges" who understand the relevant technical issues and industry practices and thus reduce the probability of unpredictable results can significantly reduce the cost and delay associated with document exchange and depositions and can reduce the amount of time spent on evidence presentation in hearings. Engineers can play an important role when determining whether their organizations and their clients arbitrate or litigate. The use of arbitration requires contractual agreement. Without the inclusion of predispute arbitration procedures in the project’s contracts, it is likely that disputes will be resolved through litigation and not arbitration. Engineers can influence the inclusion of arbitration because they often suggest the forms of project contracts as representatives of engineering, contracting, or owner organizations. Engineers may also find themselves in management roles where they will be involved in a dispute that will be resolved via arbitration. As a party to the arbitration, it is important for the engineer to understand what influence he or she has in making decisions regarding the arbitration process. This paper provides guidance to engineers who are in a position to influence the inclusion of arbitration in the project contracts. This paper also provides suggestions about how the engineer can work with the attorneys to influence the best and most cost- and time-efficient result in the event an arbitration has been commenced. This paper is not a theoretical research paper but rather is a practical guideline based on the experience of the writers, who are engineers and who have been in the arbitration field, both domestically and internationally for over 30 years, seeing the good, the bad, and the ugly. Together, they share their insights on why the arbitration process can be the better choice for dispute resolution.


ASCE Subject Headings:
Arbitration
Contracts
Dispute resolution
Litigation
Construction industry

Author Keywords:
Arbitration
Arbitrators
Contracts
Disputes
Dispute resolution
Litigation
Construction
Alternative dispute resolution
Construction claims
American Arbitration Association