Based on a True Story
The Situation
Imagine a
situation where a large international general contractor has been terminated
for default mid-project on two major unbonded educational campus projects on a
UK protectorate island. The government
takes assignment of the subcontractors, who happen to be the only competent
subcontractors on the island, to continue progressing the work until a
completion General Contractor can be hired.
A year later, there has been only an additional ten percent progress
and, due to a payment dispute, the subcontractors decide to terminate the
government for default. After some negotiation, the parties agree to a
termination for convenience and attempt to follow the contract ADR procedures, but
they are generally unworkable given the peculiarity of the situation. As a last resort, the parties agree to a
mediation using an experienced Quantity Surveyor from the UK; the mediation
fails miserably and the parties are at the end of the contractual ADR options.
The parties
are determined to keep the pending dispute out of the island court system, so
they get creative. Queen’s Counsel
suggests the appointment of an independent Expert to decide the disputes. Candidates are identified from a global pool,
a short list of face to face interviews are held, the preferred Expert spends a
week with the parties working through representative issues and the parties
agree on the Expert. The resulting appointment
agreement includes this clause:
“The parties agree that all decisions and awards made by Expert in the course or at the conclusion of the Valuation Exercise shall be final and binding on the parties…and the parties also waive irrevocably their right to any form of appeal, review, or recourse to any court or other authority with jurisdiction, insofar as such waiver may be validly made.”
This clause
is the essence of the Expert with Final and Binding Decision Authority (“BDA”) ADR
process. To coin a phrase, I’ll call
this particular ADR process the “BDA” process and the Expert the “BDA Expert”.
To Bind or Not to Bind
Having been
that appointed BDA Expert and having issued that final, binding decision, I see
many complex construction disputes that could potentially benefit from this BDA
approach to ADR. However, US litigators have
not been inclined to take the leap of faith required to entrust a BDA Expert
with their client’s fate in a construction dispute. I believe with a little more understanding of
their slightly altered role in the ADR process, US litigators could accept this
binding ADR process to fairly resolve certain types of construction-related disputes.
There are
many popular variations of non-binding ADR which involve independent expert
analysis and recommendations, but none that I’m aware of that give the Expert this
final and binding decision authority. The
primary reason is that the US litigators want to stay in control of the legal
process. This fear of being out of
control (i.e. out of appeal options) is largely unfounded. In the BDA process, the US litigators are
still in control of the legal process, they are simply dealing with a very
involved Expert instead of a lesser involved Dispute Resolution Board, a
neutral listener, a mediator, an arbitrator, a panel of arbitrators, a judge or
a jury. Any arguments that would be made
on appeal are made during the review of the Draft decision.
It is also
crucial to recognize the difference between the level of involvement of the BDA
Expert and these other triers of fact: the BDA Expert has complete access to
all the facts from all parties throughout the analysis phase and decision
process. While the starting point is the
traditional plaintiff’s statement of claim, from that point forward, the BDA Expert
decides which claims merit consideration, works with the plaintiff and
defendant to perfect the claim facts and conclusions, allows rebuttal from the
defendant, allows re-statement of claims from the plaintiff, finalizes the BDA Expert
analysis and issues a written DRAFT decision.
The parties can respond to the DRAFT decision, discuss any final points
with the other parties and the BDA Expert and, after hearing all arguments, the
BDA Expert finalizes the decision on that issue. This process is repeated for all issues that
are agreed to be decided. In my
experience, both parties were satisfied with the fairness of each decision,
knowing that they had enjoyed the full benefits of natural justice.
Recognizing the Situation to Suggest
Expert BDA
US
litigators with experience in international construction dispute resolution
will likely recognize the BDA Expert model, as it is an established ADR process
in international venues. In the US, disputes
with certain characteristics would likely be good candidates for the BDA Expert
approach:
- When the parties desire to design an expedited decision-making process on key disputed issues.
- When the parties desire the trier of fact to master the technicalities of large, complex technical disputes in order to fully understand and consider the underlying root cause of the dispute, including:
- causes of late and out of sequence work,
- causes of labor productivity problems,
- assessing “or equal” equipment or material substitutions,
- causes of equipment and material cost escalation,
- responsibilities for design versus shop drawing details,
- causes of equipment performance problems, and other things.
- When the parties desire to have individual decisions on a large number of disputed issues, such as:
- an independent valuation of base contract work completed;
- an analysis of entitlement to and valuation of disputed change orders;
- an analysis and valuation of partially completed value engineering work;
- a valuation of deductive credits for incomplete work or work not performed;
- auditing of incurred costs in a termination for convenience;
- an adjustment of final contract value due to the costs of correcting defective work;
- an interpretation of disputed contract terms, such as the “value” of work completed under an AIA contract, i.e. is it the contract value or the actual cost incurred?
- When the parties desire to keep the dispute in a private ADR venue.
- When the parties desire to turn the decision over to a trusted third party.
- When the situation is so peculiar that other forms of ADR are unworkable.
- When the parties need to disclose, yet protect, commercially sensitive and auditable information.
- When the percipient witnesses are still available to participate as fact accelerators in the dispute resolution process.
- When the parties desire to maintain their business relationship with each other by reaching a fair resolution.
- When the parties desire an “open-book” approach to dispute resolution.
The Recommendation
Based upon
my favorable experience with this BDA process, I recommend that US litigators
consider this form of ADR in certain construction disputes. It is a bold step for litigators to suggest
an approach to ADR providing a BDA Expert with such final decision
authority. However, there is more
fairness designed into this ADR process than in most other ADR processes, given
the opportunities to state and re-state claims and to assure all your arguments
are heard, fair and square.
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