Disputing Blog by Karl Bayer, Victoria VanBuren, and Holly Hayes
Thomas J. Stipanowich, Academic Director of the Straus Institute for Dispute Resolution, William H. Webster Chair in Dispute Resolution, and Professor of Law at the Pepperdine University School of Law just completed yet another article for a special issue of The Construction Lawyer titled: Managing Construction Conflict: Unfinished Revolution, Continuing Evolution; Pepperdine University Legal Studies Research Paper No. 2014/22.
Here is the abstract:
Two decades ago many believed we were experiencing a “Quiet Revolution” in the way conflict was managed, and nowhere was this more true than in the construction sector. Frustration with the costs, delays, risks and limitations of lawyer-driven adjudication prompted growing attention to informal methods aimed at early resolution of disputes, with those who “owned” the dispute back in the driver’s seat. A smorgasbord of options for preventing, managing and resolving conflict was suddenly on the table. There were strategies aimed at the very roots of conflict, including contractual terms aimed at promoting collaboration and reducing the chance of serious conflict, as well as mechanisms for “real time” dispute resolution on the jobsite. Phased or tiered dispute resolution might include early negotiation and, if necessary, negotiation with the assistance of a mediator; mediation promised to be a particularly flexible tool for facilitating resolution of individual disputes and promoting improved communications and relationships on projects. There were even proposed new twists on binding arbitration, the longstanding traditional alternative to litigation of construction disputes.
The Quiet Revolution has borne considerable fruit. Partnering remains a critical element of construction for some agencies, and broader contract-based platforms incentivizing collaboration and reduced conflict are available as integrated project delivery systems. Dispute boards are an established feature of many U.S. and international infrastructure projects. Tiered “filtering systems” for resolving construction conflicts are ubiquitous elements of construction contracts, and mediation has become a dominant intervention strategy for dispute resolution in the U.S. and other common law countries and is gaining considerable steam elsewhere. Arbitration is the focus of unprecedented international discussion and debate. On the other hand, the litigation-oriented legal culture continues to exert “gravitational pull” on mediation and arbitration. Within these realms lawyers largely control the shape and timing of dispute resolution processes, who gets in, and who runs or facilitates the process (typically, lawyers); the shadow of litigation and the litigation model hangs heavy over the scene. Nevertheless, conflict management, like other human operations, continues to evolve and change. Potential agents of transformation include the rapidly morphing realm of information technology; the increasing globalization of society; the surprising new insights made possible by behavioral science and the mining of “big data”; the impact of longer productive lives and “active retirement”; and the never-ceasing drumbeat for new forms of professional education and credentialing.
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