There are an array of resolution processes, service providers, and neutrals that are available, that can be selected to suit a particular projects needs. Tribunals and associations vary in their qualifications to perform conflict resolution processes for construction oriented disputes. Some are staffed only with individuals from the judicial system who may tend to deal with the issues and conflicts from a legal perspective and not based on the facts of the dispute or industry standards. Some have neutrals from the construction industry such as general contractors, architects, engineers and construction attorneys. Some allow the parties to select the mediator or arbitrator and others make the selection for the parties. Some dispute resolution providers are staffed with part time neutrals and others with full-time trained professionals. Specifying the wrong tribunal with the wrong panelists can be as critical to the projects success, as the selection of a mix for the foundation concrete. The most commonly used methods of resolution in the construction industry are Dispute Review Boards, Mediation, Arbitration and Litigation. Each of these processes varies from one another and has different applications that need to be addressed by the Design Professional. Not one of these methods of resolving disputes is a panacea of conflict resolution. They each have their benefits and their shortfalls. It should be the endeavor of each Design Professional to know and understand the various processes, the appropriate tribunal or association and neutrals to use for each aspect of their projects. If the Design Professional does not specify a particular resolution process and tribunal, then the resolution of the conflicts on their projects will default to litigation. Are there benefits to litigation? Absolutely. If the conflict involves a legal or civil rights issue the courts are the appropriate process. But if the conflict or issue involves workmanship, scope of services, interpretation of specifications, delay claims, change orders, and other issues that commonly arise on construction projects, then the Design Professional should investigate alternative means and methods to resolve these conflicts.  Litigation has proven to be too costly and too time consuming to be used to resolve typical conflicts and issues in the construction industry. Relationships between all the participants in the construction process are a delicate asset that if not respected by the selected process, can bring a project to an abrupt halt, affect the fiscal outcome of the project and unwittingly destroy reputations. In his 1984 State of the Judiciary Address, Chief Justice Warren Berger said, "The entire legal profession lawyers, judges, law teachers has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers of conflicts. For many claims, trials by adversarial contest, must in time go the way of the ancient trials by battle and blood . . . Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people." Either the use of standard arbitration clauses or the lack thereof, by Design Professionals, has been tradition. Does a generic standard clause really address all the potential conflicts and how they should be resolved? When analyzing how disputes should be resolved on a particular project, many facets need to be considered. Such as; 

• What type of disputes should be resolved through the courts? 
• When is it appropriate to use mediation? 
• What are the ups and downs of the process? 
• Is it open to abuses?
• When is it appropriate to use traditional binding arbitration? 
• Can the process be fair and reasonable? 
• Are there modifications to the traditional arbitration process that are more desirous to apply in some disputes?
• When are dispute review boards appropriate? 
• Can the smaller projects be well served by a single panelist? Should the panelists be from the construction industry? 
• Should their recommendation be binding or non-binding?
• Should the two parties in conflict be required to try to resolve their dispute while it is in the issue stage, before it becomes a fully embroiled battle of win or lose? 
• Is it possible to select a process that will preserve the relationships of the parties in dispute instead of turning them into enemies? 
• Can relationships be maintained in arbitration, mediation, and dispute review boards?
• Should there be a limit set on the scope of issues a particular process can address?
• Should legal issues only be litigated? 
• Should purported defective work be judged through arbitration? 
• Would change order requests or specification and contract interpretation issues be better handled through dispute review boards?
• Should the process be set up so that it can be mandated and implemented by just one party and so the dispute can be heard by a neutral third party, even if only one of the parties are present at the hearing?
• How much notice of a requested hearing to the other party is fair and reasonable?
• Should discovery be allowed, limited or unfettered? 
• Should spending for discovery or time limits for discovery be imposed?
• What type of disputes require discovery?
• Could a non-arbitrator or a non-mediator neutral expert, selected by both parties, be used to determine the validity of a claim and how much it should settle for?
• Who should be selected to hear the dispute? 
• Someone from the industry or someone from the judicial environment? 
• If the dispute is between the Architect and one of his Engineers, should the Review Board Panelist, mediator or arbitrator be an engineer or architect?
• Which Association or Tribunal would be best to accommodate the resolution process?
• Which Tribunal has the appropriate panelists? 
• Are their panelists readily available and willing to work unusual hours to accommodate the
  project? 
• Should the tribunal or association select the neutral or should the parties? 
• Are the case managers readily and conveniently available?
• Where should the hearing or meeting be held? 
• At the job site or one of the parties offices or a neutral site?
• What time limits, to resolve disputes, would be appropriate for this particular aspect of the project? 
• Should a hearing or meeting be conducted within days if the conflict arises during construction or within weeks if the conflict is after completion? How much time should be allowed to select an arbitrator or mediator?
• Should the resolution of procedural issues of the meeting or hearing have time constraints?
• Should a referee from the tribunal or association be available to resolve these issues instead of the arbitrator, mediator or dispute review board?
• Who should pay for the use of the process and for counsel or experts? 
• Should they be shared or should the prevailing party be reimbursed for the costs?
• Should there be a limit on spending for representation and consultants?
• What remedies should be available to the parties or the arbitrator, mediator or panelists? 
• Work performance with conditions or monetary settlements only?
• How should an award be enforced? 
• Through the courts, through a bond or by agreement? 
• Should the award or decision be appealable?
• Should the meetings or hearings be private and confidential or discoverable?
• Should the results be published or discoverable if the decision is moved to a different process?

These Questions can be answered and quite wisely with some research and investigation into each aspect of the project and its unique requirements. This inquiry can not be treated lightly, as the decision or answer to each of these questions can and will affect the quality, timing and success of each project. The required research basically boils down to an investigation of which process or combination of processes is most appropriate for each aspect of a particular project, which tribunal or association has the relevant rules and guidelines and a well-suited panel, and which of the above mentioned criteria is applicable to the project. Design Professionals must strive to educate themselves on how conflicts should be resolved, just as they have educated themselves on the concrete for the foundation. Mediation, arbitration and the use of dispute review boards can aid the owners, design professionals and contractors to minimize their frustrations when resolving conflicts. They can control the destiny of their projects beyond the bricks and mortar. Remember, if no process is delineated, the resolution of a conflict automatically defaults to litigation. Litigation has its benefits, but as discussed, is far to adversarial for the construction environment and experience demonstrates that resorting to lawsuits to settle construction disputes has many disadvantages. The net result is that all too often only the lawyers, consultants and expert witnesses benefit from the lengthy court actions and the destiny of the project is out of the owners, design professionals and contractors control. Maintain control of your projects by being process smart and writing a detailed specification for resolving disputes. David Armstrong is an arbitrator, mediator and dispute review board panelist specializing in construction industry disputes. He is a risk management consultant to architects, engineers, suppliers and general contractors. He can be contacted through the Institute of Construction Management, PO Box 491220, Los Angeles, California, 90049, (310-440-1006). www.icmllc.com <http://www.icmllc.com/>

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