Contractors and lawyers in the United States have been at the vanguard of the alternative dispute resolution (ADR) movement. Their efforts have led to today’s general acceptance of arbitration, mediation and creative med-arbitration arrangements to resolve the most complex and difficult project disputes. As these ADR processes become more sophisticated and costly, there is a growing recognition of the need for a simple and less costly ADR mechanism—one more in tune with the general project model that contemplates a prompt, cooperative and evenhanded disposition of issues while the construction process is ongoing. The concept of “adjudication,” a fast-track dispute resolution process introduced into the lexicon by the United Kingdom’s Housing, Grants, Construction and Regeneration Act of 1996 (the HGCRA)1, may be the nucleus for an approach that would find favor with the construction industry in the United States.2 However, adjudication as understood in the U.K. has not yet crossed the Atlantic. The closest thing to it is the dispute review board (DRB), which uses a panel approach instead of a single adjudicator. DRB decisions are usually non-binding and they are a creation of contract rather than legislation.
This chapter considers whether a contractual form of adjudication might be workable within existing U.S. legal structure.