Joel Levine has extensive experience in arbitrating and mediating construction cases.
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Nothing in the nursery rhyme states that Humpty Dumpty was an eggor that the wall was in danger of collapse. If the rhyme were about aconstruction accident, we would say that this is an example of poordraftsmanship. What caused Humpty’s fall? Did the wall collapse? If so,was it defectively constructed or repaired? Who was responsible forconstructing 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 thissituation is that a potentially expensive and lengthy legal battle is likelyto ensue. Arbitration would appear to be the superior forum. It is private;it uses a variety of streamlined mechanisms that make it quicker and lessexpensive than going to court; it is less aggravating and stressful; it givesthe parties control over the process; and it allows them to selectarbitrators with special construction skills and expertise.2 This removesthe irrational jury factor and the possibility of a judge unfamiliar withconstruction deciding the merits in a bench trial. Arbitrators are moreaccessible than most judges and they do not make the parties waitmonths to decide pre-hearing motions. Arbitration is also less expensivebecause the grounds for challenging arbitration awards are extremelylimited. The point to remember is that since arbitration is a privateprocess, construction parties have the power to determine the rules oftheir arbitration universe.