While Mediation is a popular choice for resolving construction disputes, the Construction Industry has been on the cutting edge of the evolution of ADR through its use and development of other ADR processes.

Arbitration - is commonly used to resolve construction disputes.  At one time, arbitration was so popular that it became part of most standard form contracts in use.  There are several forms of arbitration following a varied set of rules.  The common denominator is that each party will present evidence to one or more arbitrators.  The arbitrator(s) will consider the evidence and make a decision that will become binding upon the parties. 

Some of the benefits of arbitration include, cost savings, speed of resoltuion, finality, and flexibility.  Some suggest that there are some limitations to arbitration that are important for the parties to consider in the construction context.  While the contracting parties may be obligated to participate in a mandatory arbitration, the materialmen may not be so bound.  (It is advisable to check the law in your jurisdiction on that issue). This may make it necessary for a subsequent process to be utilized to deal with these collateral issues. 

Some have argued that an abreviated version of discovery often employed in arbitration make a proper resolution of the case difficult.  When more discovery is employed, then the cost savings offered through arbitration are eliminated.  If the parties are participating in a "binding" arbitration, then they may have no right of recourse or appeal of an adverse finding.  It would be advisable to discuss arbitration pros and cons with your legal counsel to decide if this process is right for your dispute.

Med/Arb-Arb/Med - Hybrid processes also have gained some popularity in the resoltution of construction disputes.  A mediator and arbitrator are selected by the parties.  Sometimes the same neutral serves as both the mediator and arbitrator, but this is not recommended by many ADR experts.  In a Med/Arb process the mediation is held first.  If the mediation fails, then the parties will move to arbitration for final resolution.  With Arb/Med, the arbitration is held and a decision reached by the arbitrator.  The arbitrator then places his decision in a sealed envelope while the parties move into mediation.  The hope is that the parties will reach a negotiated settlement rather than being bound by the decision reached by the arbitrator.  Many parties employing the Arb/Med process report that the arbitrators decision is rarely used as the parties overwhelmingly find a negotiated solution to their dispute.

Dispute Review Boards - DRB's provide parties with an opportunity to resolve a dispute on the fly while they are in the middle of the construction process.  A panel of experts is retained to consider the dispute and then to provide a "non-binding", "advisory" opinion as to how the matter should be resolved.  It the parties do not accept the finding of the DRB, they may employ other options including Mediation, Arbitration or Litigation to resolve the matter.

DRB panel members are usually comprised of a lawyer, a design professional, and a contractor professional, so that all aspects of the dispute can be considered in rendering the advisory opinion.

Negotiation - If the parties feel comfortable with one another and believe that they can have a productive and professional discussion about their dispute, many parties are able to resolve their differences without the use of a third party neutral.  Talking with one another is usually a good place to start especially when one knows that they are able to employ other ADR processes if direct negotiations fail.