The appointment of construction experts in the United States is often reserved for post-mediation or post-adjudication proceedings. This paper explores the typical involvement of experts in construction ADR (either mediation or early adjudication settings) and how earlier expert involvement may lead to more effective alternative dispute proceedings. By involving experts early in the process, prior to mediation or early adjudication proceedings, parties, counsel, and neutrals may increase the potential for early and successful settlement of construction disputes.
Construction disputes are evolutionary and often complex. It is often difficult to pinpoint the exact point at which a dispute arises. Some disputes reach swift resolution while others may take years and millions of dollars to resolve. In the United States, construction experts assist in resolving such disputes by performing detailed analyses regarding project schedule, costs and/or defects, providing impartial opinions on the issues at hand and, in some cases, furnishing reports or testimony. A key decision for parties and counsel alike is whether to retain an expert to perform early case assessment and provide input prior to the presentation of the dispute to Alternative Dispute Resolution (“ADR”) neutrals. If such services are required, an equally important decision is when an expert should be hired; a question answered by the evaluation of many variables.