Strategic Tips That Parties Should Consider When Mediating Disputes

Nearly all construction industry standard form contracts require mediation as part of their dispute resolution provisions. Often confused with arbitration, mediation is a negotiation facilitated by a neutral third party. Unlike arbitration — a proceeding like a trial — mediation does not result in a final binding decision. And the mediator typically does not have any decision-making authority in the context of the mediation.

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Expert Determination Clauses: A Tailored Alternative for Construction Projects?

In Short

The Situation: Construction disputes face unique challenges in addition to those faced in other types of commercial disputes. Parties often agree to adopt independent expert determination as a means of managing these challenges.

The Concern: Many boiler-plate independent expert determination clauses are not sufficiently tailored to the nature of construction projects or the particular circumstances of the project.

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