The “best” method of resolution of construction disputes – elusive or illusory?
Dr Donald Charrett (2013) 1 ICLR 88.
The argument about what is the “best” method of resolution of construction disputes has been a topic of discussion at recent construction law conferences, if perhaps somewhat tongue-in-cheek.
The paper suggests some criteria that may make the search for the “best” method of DR for a particular dispute not illusory, and hopefully a little less elusive. It is implicit in the following that the analysis must ultimately be in the context of a specific and unique dispute, and not a generalized class of disputes. In each dispute, the disputants will view the relevant factors from their own subjective viewpoint. Accordingly, it is submitted that there is no objective “best” method in the abstract, even for a generalized class of disputes.
The thesis of this paper is that the “best” method of resolution of a particular dispute from an individual disputant’s perspective is typically the one that achieves the appropriate proportionality between the competing demands of the time and cost of the process, and the “justice” it delivers. In practice, this generally involves the selection of a DR method that gives the highest priority to the most important element(s), and balances the remaining element(s) accordingly, whilst giving necessary weight to the desired features of the process.
Further information can be downloaded: Download