The construction industry ADR marketplace is crowded with good, adversarial approaches to dispute resolution. It is also crowded with good, adversarially trained neutrals. It is the authors’ argument, however, that the adversarial rhetorical model that underlies all of these processes is neither inevitable, nor always appropriate in an industry characterized by high value, high risk, repeat interactions. Upon closer examination, we saw that many of the same drivers that gave rise to the collaborative movement in family law disputes, which are also characterized by high emotional value, high risk and repeat interactions, were applicable and often amplified in a construction law context. We therefore concluded that a new, non-adversarial rhetorical model was possible.
In the following article the authors introduce, explain and defend a collaborative methodology they developed and implemented for the resolution of a complex construction industry dispute. The authors conclude that collaborative methodology has the potential to deliver merits-based resolution of complex construction disputes without intervention by third party neutrals.
After briefly introducing a practical example, the authors discuss the theoretical underpinnings of collaboration in a construction industry ADR setting as an example of systematized cooperation. The collaborative settlement of construction industry disputes is then considered from various points of view, including decision theory and negotiation theory. The authors include a note on the practical effect of this collaborative dispute resolution model on the economics of legal practice.