Instant Arbitration
In these days of instant tea, instant mashed potatoes, instant beef stroganoff and those damned instant spare tires, this column is pleased to propose another instant-instant arbitration. Those who have tasted instant beef stroganoff will readily agree that this is a better idea.
Since this concept deals with expediency, we refer to instant arbitration by its initials “IA”. Those wishing an element of mystique may prefer the initials for “construction instant arbitration.”
IA may best be illustrated by example. Suppose the architect on a particular project rejects a large masonry wall, claiming that it does not meet specifications. Assuming the contractor disagrees, the contractor and masonry subcontractor would be faced with two choices: rebuild the wall or refuse.
Rebuilding the wall would involve considerable expense and perhaps delay. Refusal would precipitate a battle of a different sort. If the parties are unable to resolve the problem among themselves, they are likely to meet either in court or at the arbitration table. The question is when.
If the contractor (or subcontractor) elects to replace the wall, there will undoubtedly be substantial delay before the controversy is decided. That delay would involve perhaps years in court to likely just under a year in arbitration. There will be considerable expense involved for attorneys’ fees and loss of productive time of the disputing parties as well. If the contractor (or his subcontractor) succeeds in the litigation or arbitration, he will recover some but not all of those expenses. And, only after a considerable delay.
On the other hand, the owner would likewise be put to similar expenses even if he wins. If he loses, he will get one wall for the price of two!
Some of these problems are soluble with use of instant arbitration. By prearrangement a hearing panel composed of one or three arbitrators could be preselected. When a controversy arises he (or they) would be called in at the onset of the dispute. The panel could view the site, hear testimony of witnesses, examine relevant plans, specifications and other exhibits and render a prompt decision (award).
The advantages of this procedure is obvious. The risk of either replacing or refusing to replace the wall only to await a much later litigation or arbitration result would be avoided. The owner would not chance having to pay for two walls.
The problems of locating missing witnesses, missing exhibits or attempting to prove undocumented facts would be eliminated entirely. The arbitrator(s) would have a first-hand opportunity to examine the facts: alive-rather than by photographs or through the hazy recollections of witnesses.
IA could be established either by the parties to a contract agreeing to an instant arbitration procedure and, at the same time, arranging for arbitrators to serve. Otherwise, one of the recognized institutional arbitration agencies, such as the American Arbitration Association, might be induced to establish a program for administration of instant arbitrations.
Anyone who has had experience in construction disputes leading to some type of formal litigation will immediately appreciate the need for fashioning a better and quicker method of resolving construction disputes. The instant arbitration notion should be carefully considered.
Just add hot water and stir!
