Dispute Review Boards: Lessons Learned, Current Trends and Looming Challenges - American Journal of Construction Arbitration & ADR (AJCA) - Vol. 1, No. 2
Originally from the American Journal of Construction Arbitration & ADR
The use of Dispute Review Boards (sometimes called Dispute Resolution Boards, both typically abbreviated as “DRB”) is widespread in state and local infrastructure contracting in North America. It is typically a key rung in a contract’s dispute resolution ladder, preceded by direct discussions and bilateral negotiations and sometimes followed by one or more ADR steps such as mediation, and, if necessary, final and binding adjudication, e.g., arbitration, litigation.
While it is fair to say that there is a substantial body of knowledge and experiential information about the process, given the lack of “reported decisions” and the relative informality of the process, analysis may be difficult due to the challenge of obtaining data from the hundreds of owners, design professionals and contractors who have had firsthand experience with the process. That being said, this article provides a compilation of lessons learned, current trends, and looming challenges, based on the author’s direct experience serving on some approximately 200 DRBs during the past 30 years, and based on general observations of the process and anecdotal observations of other DRB professionals.
The scope herein is limited to the DRB process as generally used and practiced in North America. To be sure, there are countless variations, modifications and permutations in implementation and practice, but for the most part, there are a number of relatively common elements, several of which will be described and discussed below.
In much of the balance of the world, the Dispute Adjudication Board (“DAB”) is by far the predominant dispute resolution board format. This has been driven and deployed through the various forms of contracts developed and distributed by FIDIC and other producers of standard forms of contract that have been developed over the years. There are significant differences between a DRB and a DAB. The most notable of which is that the output of a Dispute Adjudication Board is generally specified to be final and binding unless and until overturned by another adjudicatory body. (ICC Arbitration is often specified).