Nothing in the nursery rhyme states that Humpty Dumpty was an egg

or that the wall was in danger of collapse. If the rhyme were about a

construction accident, we would say that this is an example of poor

draftsmanship. What caused Humpty’s fall? Did the wall collapse? If so,

was it defectively constructed or repaired? Who was responsible for

constructing or repairing the wall? What did the contract documents say?

What should they have provided? Were the sureties notified? What about

“the king’s men”? Were they incompetent or excused by force majeure?

The only outcome construction professionals could deduce from this

situation is that a potentially expensive and lengthy legal battle is likely

to ensue. Arbitration would appear to be the superior forum. It is private;

it uses a variety of streamlined mechanisms that make it quicker and less

expensive than going to court; it is less aggravating and stressful; it gives

the parties control over the process; and it allows them to select

arbitrators with special construction skills and expertise.2 This removes

the irrational jury factor and the possibility of a judge unfamiliar with

construction deciding the merits in a bench trial. Arbitrators are more

accessible than most judges and they do not make the parties wait

months to decide pre-hearing motions. Arbitration is also less expensive

because the grounds for challenging arbitration awards are extremely

limited. The point to remember is that since arbitration is a private

process, construction parties have the power to determine the rules of

their arbitration universe.