In this article, architect and arbitrator Michael Altschuler argues for wider use of site visits in construction arbitration. He demonstrates how site visits can help produce a better award and explains how best to conduct them. He suggests that attorney arbitrators would feel more comfortable on job site visits if they could learn the skills necessary to “read” a construction site. The site visit is a vital tool in construction arbitration but it is not used enough.
Attorneys are trained to use the written and spoken word, while architects, engineers, contractors and construction managers rely on visual cues. Their differences affect the way they each approach arbitration. In construction disputes, litigating attorneys document their positions through the testimony of the disputing parties and their witnesses. They create a record with the contractor’s estimated costs, or actual invoices, correspondence, minutes of job meetings, punch lists, change orders and canceled checks. They also may refer to the construction plans, photos of the site and possibly even a view of a video of the project.
For arbitrators who are construction professionals but not attorneys, the construction documents and related materials are the means by which the structure is built, but the structure itself is the ultimate reality. Accordingly, construction professionals will not limit the evidence they want to see to the project drawings, documents, photos and videos. They will also want to view the conditions at the project site before rendering a decision on the merits, which could involve whether there was shoddy workmanship, construction defects, a structural failure, unfinished work, installation of damaged materials, or an unsafe work environment. Construction professionals instinctively know how important it is to see the site in order to reach an informed decision on the issues.