Alternative Dispute Resolution

Dispute resolution facilitators create and maintain a respectful environment in which the parties are encouraged to clarify their positions, recognize their underlying interests, and together invent mutually beneficial solutions. The process is entirely voluntary. When and if a mutually agreeable solution is created, the facilitators help the parties to record their resolution and to test both the mutuality and workability of the agreement.

BostonSolv works with parties to:

• Understand the substantive and behavioral sources of conflicts;
• Achieve a resolution, by mediation, within 60 days of receipt of authorization to proceed from all disputants;
• Control how much money and time is spent on resolution and mending of business relations;
• Provide impartial neutrals, mediators, and arbitrators with practical construction industry expertise;
• Continue work without disruption while differences are resolved;
• Choose where and when they want to participate in training, mediation, arbitration, and problem-solving negotiations; and
• Receive proactive dispute resolutions and dispute resolution services based on proven techniques.

All client services provided are held confidential.

Mediation

Mediation is a voluntary process in which a neutral third party assists the disputants in crafting a written resolution to their dispute or disagreement. The mediator does not impose a settlement, and the disputants are under no obligation to reach an agreement. And rarely does the mediator assess the fairness of the agreement. Thus any settlement or resolution reached by the parties is truly voluntary and in most cases results in immediate compliance. Mediation sessions require each party to have someone with final decision making authority participate. The process is private and confidential, and the substance of the discussions and negotiations is generally privileged.

Arbitration

Arbitration is a more formal process than mediation, but still less restrictive than litigation in the courts. The parties usually pick an experienced decision maker, called the arbitrator, or in some instances a panel of two or three arbitrators. The arbitrator will hear the case, including any evidence and witnesses, allowing each side to present its position, usually followed by any questions the parties might have for the other side. After the hearing is concluded, the arbitrator, within the stipulated period of time, will render a written decision. (In many cases, the decision does not have to be supported by any findings of fact or law.) Both sides must accept the decision of the arbitrator unless the parties have previously decided upon an advisory opinion, in which case the decision is not binding. Arbitration is most appropriate in cases where the parties want a final decision and are willing to allow that decision to be made by a third-party neutral. The arbitration process is private and confidential.

Partnering

Partnering is one of the most successful ways to prevent or minimize construction disputes. Partnering starts with a team-building session very early in the project with the owner, user(s), designer(s), CM, or GC. It is usually repeated as more project participants are brought on board. In each partnering session, the previous attendees are included so that consistent teamwork concepts are developed among all project participants. Beginning with the first partnering session and expanded with each subsequent session is a written project charter signed by all partnering attendees. This charter includes a mission statement and common goals for the project. This document and its subsequent revisions are widely displayed throughout the project.

At BostonSolv we encourage the use of two other important documents to ensure the success of each partnered project: (1) a graphical presentation of how disputes will be resolved and (2) a report card for measuring and reporting how well the project charter goals are being met. These two documents establish the continuity and credibility of the Partnering approach.

Dispute Review Boards

A Dispute Review Board is a small, independent group of experts who oversee a project and work with participants to avoid and resolve disputes on a timely, cost effective, and harmonious basis. Its members strive to remain familiar with the project at hand, but for the sake of objectivity and fairness they maintain their independence from the owners, designers, contractors, consultants, and other participants. The board can improve communications among these stakeholders; help them recognize or admit that a conflict is developing; point out the consequences to both the project and its participants of not addressing a problem promptly; and even render an opinion as to the outcome of a formal dispute.

According to the Dispute Review Board Foundation, an international association of experienced construction professionals based in Seattle, there is an overwhelming correlation between the use of dispute review boards and the absence of litigation on projects of all sizes and types. These boards serve as a preemptive strike at managing inevitable construction conflicts before they occur. Frequently, their members are seen as peers before whom the project participants would rather bring only really difficult matters. Consequently, many conflicts get resolved before they ever become formal claims.

Training

Knowing the sources of disputes is critical to preventing normal tensions and misunderstandings from developing into full-blown conflicts. By combining our design and construction experiences with our dispute resolution skills, BostonSolv helps clients understand where disputes originate, how human behavior foments or diffuses them, and what tools can aid in resolving them constructively. We act as coaches, rather than teachers, and favor participatory discussions over lectures. We also tailor the format of our training programs to the needs of each particular client or situation.