Isomorphism of Construction Arbitration - Dispute Resolution Journal - Vol. 65, No. 2
John T. Blankenship has been a practicing attorney since 1978. A majority of his practice involves construction contracts and claims in litigation and arbitration. He has also been involved as a principal or partner in residential subdivisions and commercial construction projects. He serves on the American Arbitration Association’s panel of construction arbitrators.
Originally from Dispute Resolution Journal
The need to save arbitration from “creeping legalism” and restore it to the efficient process it once was.
Isomorphism is a word many people may be unfamiliar with, so the best way to explain it is with this excerpt from Douglas Yarn’s article that provided my first exposure to the term.
Once upon a time, people sought to avoid the courts and turned to an alternative to litigation.... The commercial community, who found the courts to be inefficient and inattentive to their specific needs, began to adopt and adapt this alternative. Before too long, the courts got involved and began using the process to divert cases it couldn’t or didn’t want to handle. The alternative thrived in its newfound role as an efficient means to resolve commercial disputes and as a legitimate institutionalized partner of the legal system, but there was trouble on the horizon. Observers began to question the fairness of its use. Some lawyers found the alternative threatening because it seemed antithetical to the accepted role of the adversarial system.... Courts and policy makers began exercising more oversight and control over the process. Eventually, disputants found that the alternative was growing more and more similar to, if not sometimes indistinguishable from, the adjudication for which it was meant to substitute. While its use had become pervasive in society, the alternative was dead as an alternative. Disputants had lost control over the process, which no longer seemed as effective in reducing hostility, reconciling adversaries, promoting community, and producing efficient outcomes as it was once upon a time.1