International Construction Law Review
APPROPRIATE ADR—IDENTIFYING FEATURES OF CONSTRUCTION DISPUTES WHICH AFFECT THEIR SUITABILITY FOR SUBMISSION TO ADR
DR PENNY BROOKER AND PROFESSOR ANTHONY LAYERS
Department of Law, School of Social Sciences and Law, Oxford Brookes University and Centre for Real Estate Management, School of Architecture, Oxford Brookes University
ABSTRACT
The United States is widely regarded as the initial source of the current preoccupation with Alternative Dispute Resolution (ADR) as an alternative to the formal processes of litigation, and its construction industry is considered to be at the cutting edge of experimentation with its use. Research in the United States has produced evidence that particular determinants of construction disputes can reduce the likelihood of reaching a settlement outcome. Specific features of either the dispute or the ADR procedure have been identified as making ADR an appropriate or unsuitable choice of dispute resolution process. In the United Kingdom, the courts are now required to direct the parties towards ADR in appropriate cases, which is likely to lead to an increase in its use. This article analyses the findings of empirical investigations into the use of ADR in the US construction industry, and comparisons are drawn with data produced from a survey of the attitudes that exist concerning the appropriateness of ADR in the UK construction industry.
INTRODUCTION
Many common law countries report increased development and utilisation of alternative dispute resolution (ADR) procedures to litigation.1
This interest is frequently attributed to dissatisfaction with the cost, speed and generation of adversarial attitudes inherent in the traditional forms of dispute resolution, namely litigation2
and, in the UK, arbitration.3
The actual
1 See, for example, P Fenn, M O’Shea and E Davies (Eds), Dispute Resolution and Conflict Management in Construction. An International Review
(1998), E & FN Spon, London, for an examination of dispute resolution in 20 countries. Each monograph describes the level of development of ADR in the national system.
2 J Auerbach, Justice Without Law
(1983), OUP.
3 Arbitration is often described as an ADR process. For example, in both the US and Hong Kong construction industries, commentators often include arbitration under the umbrella of ADR. There has been a debate in the literature as to whether it should be regarded as an alternative process. (See A Lavers, “Construction conflict: management and resolution—analysis and solution”; P Fenn and R Gameson (Eds), Construction Conflict Management and Resolution
(1992) E & FN Spon.) The common understanding in the UK construction industry is that arbitration is not ADR, therefore, for the purposes of this article ADR is not taken to include arbitration.
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Identifying features of construction disputes
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