REALWorld Law

Construction

Alternative Dispute Resolution Procedure (ADR)

Is it common for construction disputes to be referred to ADR – such as adjudication, determination by an expert, mediation or conciliation? Is a form of ADR required by law, perhaps as a mandatory first step in the dispute resolution procedure?

Angola

Angola

Under the Public Procurement Law in the case of a dispute related to the termination of a public works contract, before the judicial proceeding takes place it is mandatory that an extrajudicial conciliation attempt be made. The extrajudicial conciliation attempt takes place before a committee composed of one representative of each of the parties and chaired by the President of the Superior Council of Public Works or a member designated by him for this purpose, within 30 days after the written application and answer of the parties. If the attempt to conciliate is successful, the written terms and conditions must be submitted to the approval of the Minister of Public Works, and are then valid as enforceable title.

Other means of alternative dispute resolution are not mandatory by law and, therefore, not commonly used in construction disputes.

Australia

Australia

State and territory SOP legislation has introduced a relatively new dispute resolution process; a procedure known as 'adjudication', which is designed to help parties obtain a speedy decision. Parties to construction contracts now have a statutory right to adjudication. Contracts may also make express provision for adjudication, but the terms must comply with the legislation; if they do not, a statutory scheme will automatically apply.

The adjudicator must reach a decision within 10 business days of the referral, but this period may be extended with the consent of the both parties. This flexibility has allowed more complex disputes to be dealt with by adjudication which, otherwise, would have been referred to arbitration or litigation.

Mediation is a form of alternative dispute resolution which requires the participation of a third party, a mediator, whose role is to assist the parties to a dispute to reach agreement on the resolution of that dispute. A mediator does this by seeking to align the parties' interests where possible, identifying the possible outcomes of the litigation or arbitration, and examining what options might be available to the parties to settle the dispute.

A mediator does not make a binding determination on the dispute, although he or she may make observations on the strength or weakness of the parties' respective positions. Mediation is usually conducted on a confidential basis. In Australia mediators tend to be senior lawyers.

A key element of mediation is its consensual nature. If both parties sincerely want to mediate their dispute, then the prospects of settlement are probably higher.

Recently in Australia there has been a marked trend towards court-ordered mediation. This trend has developed in response to pressure on court resources and is particularly acute in the context of infrastructure disputation.

Mediation has been so successful that many infrastructure contracts contain a clause requiring the parties to mediate their dispute prior to taking any formal steps in litigation or arbitration.

Expert determination plays a valuable role where the issue in dispute is narrow and specific eg a pure valuation dispute (where the answer can be determined by a chartered accountant, a quantity surveyor or some other such professional) or a dispute concerning whether a piece of equipment meets its performance criteria (where the answer can be determined solely by an appropriate technical expert). The expert does not act in a judicial capacity and there is no general obligation on an expert to apply the rules of natural justice (this should be contrasted with adjudication, arbitration and litigation where, unquestionably, rules of natural justice apply). Expert determination will generally be regarded as final and binding; the court will not interfere with an expert determination, even if it is plainly wrong (provided the expert has purported to answer the right question). It is, therefore, inappropriate as a general form of dispute resolution.

Dispute Resolution Boards (DRB) are now being used on some larger projects.  DRB’s involve the appointment of a board usually of three people at the start of the project which is empowered to deal with disputes as and when they arise. The DRB does not use formal procedures and generally acts quickly and cost effectively. The advantage of the DRB is that it is project specific and can apply its working knowledge of the project to cut through issues.

Belgium

Belgium

Alternative Dispute Resolution is not mandatory by law and is therefore not commonly used in construction disputes, except for matters where the determination by an expert is sought, whether appointed by the parties in agreement or in accordance with a contractual clause or appointed by the court in the context of dispute resolution.

Bosnia-Herzegovina

Bosnia-Herzegovina

It is not common but it is possible for construction disputes to be referred to ADR in this country.

Canada

Canada

Disputes are resolved by litigation unless the parties mutually agree upon an alternative method to resolve the dispute, which might include mediation, arbitration, or a combination of methods. However, even if a party commences litigation, that party may be required to attempt to resolve the dispute by way of ADR.

Most common law jurisdictions have a form of judicial mediation or settlement conference that can be triggered by one or more of the parties. Some jurisdictions such as British Columbia, have mandatory private mediation that can be triggered by one of the parties delivering a notice of intention to mediate to the other. The mediation process is without prejudice. If the parties are unable to settle after engaging in good faith efforts to do so, the legal dispute between them carries on as if the mediation had never occurred, and nothing that was said or delivered in the mediation can be compelled in the legal proceeding.

Parties may also mutually agree to voluntarily submit their dispute to mediation prior to arbitration or litigation. Most standard form commercial construction contracts include mediation as one of a few prerequisite steps to engaging in binding arbitration.

China

China

ADR procedures are not common in the PRC and are not required by law.

Croatia

Croatia

Although it is not required by law (and must not be accepted by the parties as a prerequisite to regular proceedings), mediation has been introduced in almost all commercial courts in Croatia as an alternative dispute resolution procedure.

Czech Republic

Czech Republic

Alternative Dispute Resolution procedures are based on a principle of voluntary submission. The law does not require ADR as a mandatory first step. Other types of ADR (determination by an expert, mediation or conciliation) are used where there are long-lasting and established relations between the parties.

Mediation is an activity in which a neutral third party, the mediator, guides and regulates a structured discussion to facilitate consensus being reached on a disputed issue. Mediation in the Czech Republic occurs sporadically and is mostly carried out by non-judicial mediators. As of 1 September 2012 Act No. 202/2012 Coll., the Mediation Act, came into effect. This Act establishes a new category of registered mediators who are required to pass special mediation exams. A list of registered mediators is maintained by the Ministry of Justice. Nevertheless, non-registered mediators can still carry on their activities beyond the scope of the new legislation.

An independent expert can be appointed at the beginning of the existence of a contractual relationship (his position is incorporated into the contract to cover the eventuality of ongoing problems arising). The services of experts are used in the types of disputes where technical problems predominate. It can also be used in combination with other types of proceedings.

ADR procedures are not widely used in construction contracts governed by Czech law.

Czech law also provides for the office of financial arbiter, dealing typically with disputes between payment service providers and users of payment services, which can involve construction projects.

Denmark

Denmark

It has not been common for construction disputes to be referred to ADR. Mediation is not mandatory by law, but under the Danish dispute resolution procedure it is possible to settle the case through mediation.

The updated AB 18 and ABT 18 documents however have introduced a “dispute resolution ladder”. Consequently, the parties are bound to try to resolve and settle a dispute on the lowest step of the “conflict ladder”. That is, the parties shall try to resolve and settle the dispute through negotiation before other steps can be initiated (mediation, speedy resolution or arbitration).

France

France

Alternative Dispute Resolution is not mandatory by law and is therefore not commonly used in construction disputes, except for matters where determination by an expert is sought, whether appointed by the parties to an agreement or in accordance with a contractual clause or appointed by the court in the context of dispute resolution.

Germany

Germany

ADR by mediation does exist, but is rare. In major construction projects a mediator can be employed to provide for smooth working processes between the various parties involved.

Besides that, construction contracts frequently provide for determination by an expert as a first procedural step in relation to disputes over primarily technical issues (eg completion of the works or existence of defects).

Hong Kong

Hong Kong

ADR refers to any method of resolving disputes other than by traditional litigation such as adjudication, mediation, etc. In recent years, the construction industry has been in the frontline of the innovative development and novel use of ADR and it is probably one of the largest users of ADR services among all the business sectors.

Adjudication

Adjudication may be defined as an accelerated and cost-effective form of dispute resolution that, unlike other means of resolving disputes involving a third party intermediary, the outcome is a decision by a third party which is binding on the parties in dispute. In Hong Kong, there is yet no scheme for statutory adjudication or, indeed, noticeable movement toward one. Adjudication, when adopted in construction contracts, is usually only available as one of the multi-tier processes of dispute resolution. The New Engineering Contract 1993, and the Government of Hong Kong ACP contracts provide for adjudication. It is also available in the ICE Conditions of Contract (7th Edition), but is optional. Adjudication is facilitated by the Hong Kong International Arbitration Centre (HKIAC). The HKIAC published its adjudication rules in September 2008 based on consideration of English resources and Hong Kong resources (including the Airport Core Programme Adjudication Rules, the Conditions of Contracts Sub-Committee Paper on ADR for public works and the Construction Adjudication Rules 2013 published by the Hong Kong Government.

Mediation

Mediation is the process in which the parties to a dispute, assisted by a neutral third party ie the mediator, identify the issues, develop options, consider alternatives and endeavour to reach an agreement to settle.

For the construction industry, the use of mediation has steadily grown over the last 10 years. Under the Civil Justice Reform, parties to a dispute have to explore the possibility of mediation before pursuing litigation. Unreasonable refusal by a party to mediate will risk adverse costs orders. The Mediation Ordinance was enacted in June 2012 and came into operation on 1 January 2013 to provide a proper legal framework for the conduct of mediation in Hong Kong without hampering the flexibility of the mediation process. The aim of the Mediation Ordinance is to promote, encourage and facilitate the resolution of disputes by mediation, and to protect the confidential nature of mediation communications. The Mediation Ordinance applies to any agreement to mediate if such mediation is wholly or partly conducted in Hong Kong, or if the agreement to mediate specifies that the laws of Hong Kong are to be applied, regardless of whether the mediation is conducted before, on or after the commencement date of the Mediation Ordinance.

Expert determination

For purely technical disputes, the parties can agree to appoint an expert to determine a matter of fact (more common) or law in a final and binding manner. It is a private and confidential method of dispute resolution.

Hungary

Hungary

The contracting parties are free to refer their construction dispute to ADR. Expert determination is typical where resolving the issue in dispute requires special skills and expertise. Experts are usually appointed by the mutual agreement of the parties and, similarly, the related costs are borne equally. To avoid any doubts and interpretation conflicts, the provisions for expert determination (if applied) should be included in detail in the construction contract.

Mediation is a relatively new form of ADR in Hungary and has a growing popularity. As a related obligatory requirement, legal entities must first attempt an out-of-court settlement of their dispute before filing a claim with the court.

Ireland

Ireland

In Ireland, the RIAI forms of building agreement require that disputes are referred to conciliation in the first instance, and then to arbitration.

Other forms, including the IEI form of contract, require an expert's determination prior to arbitration.

Mediation generally arises where parties agree to mediate outside the terms of the contract, or pursuant to a bespoke form of contract, or where there is no written form of contract.

A process of adjudication is now provided for under Irish law by the Construction Contracts Act 2013 enacted on 29 July 2013. This Act is broadly modelled on the UK equivalent legislation, namely the Housing Grants Construction and Regeneration Act Part II 1996 as amended by the Local Democracy Economic Development and Construction Act 2009.

The Act now applies to all relevant projects commenced after 25 July 2016. The Act introduces mandatory adjudication in construction contracts in order to resolve payment disputes between employers/contractors and contractors/subcontractors.

Construction contracts with a value in excess of €10,000 must now set out a regime for payment and, in the event one is not provided in the contract, the payment regime set out in the legislation will apply to the contract. If a dispute arises in relation to payment, either party may refer the dispute to adjudication. The adjudication process will be completed within 28 days, unless the parties agree to an extension for a maximum of 14 days. Adjudicators are appointed from a statutory panel of adjudicators and a code of practice on the conduct of adjudications has been published.

The decision of the adjudicator will be binding even if the dispute is referred to arbitration, conciliation or the courts. This means that a party against whom an award is made will be obligated to pay the amount awarded immediately. If payment is not made, the works can be suspended without any bearing on the time for completion provided for in the contract. New rules of court have also been introduced, through Order 56B of the Rules of the Superior Courts, to provide a means of enforcement of adjudication decisions.

Italy

Italy

There are several ADR methods:

  • amicable settlements
  • judicial or extra-judicial conciliation
  • arbitration, and
  • mediation, by which the parties use a neutral, independent and impartial person, who guides the parties to their own mutually satisfactory agreement.

There are also non-adversarial forms of conciliation provided for by special laws for specific sectors, such as employment, agriculture and telecommunications. There are no specific non-adversarial forms to be used for construction disputes.

Japan

Japan

As mentioned above, in addition to arbitration, mediation and conciliation are also available in CWDSB.  Though the CWDSB was established under the BSA, use of ADR or the CWDSB is not mandatory. 

Netherlands

Netherlands

Alternative dispute resolution, for example in the form of mediation, is on the increase in the Netherlands, however it is still rare in construction-related disputes. Apart from mediation, disputes can also be resolved on the basis of binding advice, in which case the litigants jointly appoint an expert who will deliver a (binding) judgment on the issue at hand. In short, alternative dispute resolution is possible in the Netherlands, albeit that parties do not often avail themselves of this possibility.

Nigeria

Nigeria

In Nigeria, parties are free to agree under their contract the dispute resolution options in the event of a dispute. It is usual for parties to a construction contract to prescribe alternative dispute resolution mechanisms such as mediation, conciliation and arbitration. Where the parties elect to explore any of the alternative dispute resolution options, in the event of a dispute, they would be precluded from referring their disputes to the High Court.

In Lagos State, there is the Multi-Door Courthouse established by law and the Lagos Chamber of Commerce and Industry which provides alternative dispute resolution services and encourages parties as a first step in any litigation proceeding to explore amicable resolution and mediation.

Norway

Norway

Under Norwegian law there is a requirement that arbitration before the Conciliation Board must be the first form of dispute resolution for parties seeking to take legal action. The parties cannot bring an action before the District Court until this has been done. However, this is not a requirement if both parties are represented by a lawyer and the value of the claim is more than NOK 125,000. Construction disputes usually meet both of these requirements and are therefore often exempt from this arbitration requirement.

Some standard documents include provisions regarding determination by an expert arbitrator. Unless agreed otherwise, each party can require that a dispute is determined by an expert arbitrator. However, this only applies during the course of the project, until possession of the works is taken by the other party. In practice, parties seldom refer disputes to such expert arbitrators.

Poland

Poland

Mediation as a method of seeking compromise by referring a dispute to an independent third party who has expertise in the field of the dispute and skills at brokering a settlement is not mandatory and not commonly used in Poland. In accordance with Polish Civil Proceedings Code the adjudicator must reach a decision within a deadline indicated by the court not exceeding three months of the referral (subject to the extension of the deadline upon the request of the parties or due to other important reasons) and the court is entitled to approve the effects of mediation.

Even though the mediation is voluntary, there is an obligation imposed on the plaintiff regarding ADR. A statement of claim submitted to the common court shall contain information whether the parties have tried mediation or any other out-of-court settlement method, and if no such attempts have been made, explanation of reasons thereof.

Portugal

Portugal

In Portugal, it is possible (but not mandatory) to refer construction disputes to ADR. The use of ADR as a method of dispute resolution is entirely dependant on agreement between the parties. ADR procedures include determination by an expert, mediation and conciliation. In Portugal it is not yet common for dispute to be referred to ADR.

Romania

Romania

The most common forms of ADR are: mediation, conciliation and determination by an expert. There is not a great deal of information available in the market regarding the use of ADR in construction disputes.

Mediation

Mediation is a non-binding form of dispute resolution that works well for minor disputes. The mediator engages in shuttle diplomacy to formulate a solution that is acceptable to both sides. It has one major disadvantage. If the mediator fails to find common ground, the dispute moves back to the litigation track. As a result, it works well for minor disputes. It does not work very well with difficult disputes or unreasonable parties.

Conciliation

Conciliation is another dispute resolution process that involves building a positive relationship between the parties of dispute. The “conciliator” is an impartial person that assists the parties by driving their negotiations and directing them towards a satisfactory agreement. Conciliation is a much less adversarial proceeding seeking to identify an obligation that has been breached and searching to find the optimal solution.

Determination by an expert

Determination by an expert is a procedure in which a dispute or a difference between the parties is submitted, by agreement of the parties, to one expert who make a determination on the matter referred to it. The determination is not binding, unless the parties agree otherwise. It is a consensual and confidential procedure.

Russia

Russia

For the majority of the monetary claims arising from the civil relationship and also for the disputes over amending or termination of agreements the ADR is a mandatory procedure: the dispute may be brought to court after expiration of 30 calendar days from the date of sending of the claim to the party unless other term or procedure are established in the contract or by law. This term is provided for pre-court resolution of the dispute by the parties.

Slovak Republic

Slovak Republic

Under Slovak law, alternative dispute resolution (ADR) procedures are not mandatory.

Arbitration as a form of alternative dispute resolution in Slovakia is governed by the Act on Arbitration Proceedings. The basic presumption is the conclusion of a written arbitration agreement or clause by the contractual parties.

Mediation as a form of alternative dispute resolution in Slovakia is governed by the Act on Mediation. By means of a written agreement on dispute settlement by mediation the parties will refer the settlement of their potential future disputes arising out of or in connection with a contract to mediation such an agreement may be superseded by declarations of the parties recorded in a minute signed by all the parties agreeing on referring disputes to mediation.

The agreement following completion of mediation, will be in writing and is binding on all persons involved in the mediation. If the agreement resulting from the mediation is in the form of a notarial deed or approved by the court as a conciliatory agreement, the entitled party may use it as title in execution proceeding.

Arbitration and mediation as the forms of ADR are not commonly used in relation to construction disputes in the Slovak Republic. In general, however, arbitration proceedings and mediation are considered to be faster forms of dispute resolution in comparison to court litigation.

Another advantage of arbitration relates to the arbitral awards. These can be directly enforced by the parties, eg in case of non-fulfilment of the obligation by the obliged party, the entitled party may seek the help of an executor without the need for any further procedure of recognition of the arbitral award.

Spain

Spain

In Spain there are no requirements to attempt any of these methods of dispute resolution before commencing proceedings and these matters are not usually resolved by means of ADR.

Sweden

Sweden

It is not very common for construction disputes to be referred to an alternative dispute resolution (ADR) procedure, although it is possible under the General Conditions for Contracts - AB 04 and ABT 06.

There is no form of ADR required by law in Sweden.

Thailand

Thailand

ADR is an optional, though not yet common, proceeding for the settlement of disputes arising from construction contracts and may include various types of resolution such as mediation, conciliation and compromise.

Thailand is continuing to recognize the significance of ADR proceedings. To this end, the Alternative Dispute Resolution Office was established to promote, support and advise on ADR proceedings, though Thai law does not require submission to ADR.

United Arab Emirates - Abu Dhabi

United Arab Emirates - Abu Dhabi

There is no legal requirement that the parties to a contract undertake any form of ADR.

Commercially, most contracts provide for some form of ADR, whether it be a requirement for negotiation by senior management, mediation or by referral to an expert on disputes regarding technical matters.

Senior management meetings are generally the most popular preliminary step before commencing formal proceedings. Adjudication, formal mediations and Dispute Adjudication Boards are less common.

United Arab Emirates - Dubai

United Arab Emirates - Dubai

Dubai Law 16 of 2009 created a forum for the amicable settlement of disputes. The Dubai Reconciliation Centre provides mediation services which the parties to the dispute must mandatorily participate in, provided that it has jurisdiction and provided that the head of the Court has referred the parties to it.

Commercially, most contracts provide for some form of ADR, whether it be a requirement for negotiation by senior management, mediation or by referral to an expert on disputes regarding technical matters.

Mediation is a method of seeking compromise by referring a dispute to an independent third party who has expertise in the field of the dispute and skills at brokering a settlement. There are two main types:

  1. Facilitative mediation (where the mediator effectively tries to facilitate a settlement between the parties, but without expressing any view on the merits) 
  2. Evaluative mediation (where the mediator will give a non-binding view as to the merits, the intention being that this view on the merits will engender settlement)

In relation to construction disputes, mediation is generally a facilitative process.

Expert determination plays a valuable role where the issue in dispute is narrow and specific, eg a pure valuation dispute (where the answer can be determined by a chartered accountant, a quantity surveyor or some other such professional) or a dispute concerning whether a piece of equipment meets its performance criteria (where the answer can be determined solely by an appropriate technical expert). The expert does not act in a judicial capacity and there is no general obligation on an expert to apply the rules of natural justice (this should be contrasted with adjudication, arbitration and litigation where rules as to representation etc apply).

UK - England and Wales UK - England and Wales

UK - England and Wales

The Housing Grants, Construction and Regeneration Act 1996 introduced, as a new option in the dispute resolution process, a procedure known as ‘adjudication’, designed to help parties obtain a speedy decision. Parties to construction contracts now have a statutory right to adjudication. Contracts may also make express provision for adjudication, but the terms must comply with the Act; if they do not, a statutory scheme will automatically apply.

The adjudicator must reach a decision within 28 days of the referral, but this period may be extended by up to 14 days with the consent of the referring party or indefinitely if both parties agree. This flexibility has allowed more complex disputes to be dealt with by adjudication which, otherwise, would have been referred to arbitration or litigation.

Mediation is a method of seeking compromise by referring a dispute to an independent third party who has expertise in the field of the dispute and skills at brokering a settlement. There are two main types; facilitative mediation (where the mediator effectively tries to facilitate a settlement between the parties, but without expressing any view on the merits) and evaluative mediation (where the mediator will give a non binding view as to the merits, the intention being that this view on the merits will engender settlement). In relation to construction disputes, mediation is generally a facilitative process.

In England and Wales, recent case law has made plain not only the higher rate of a successful outcome being achieved by mediation but also its established importance as a track to a just result running parallel with that of the court system. Both have a proper part to play in the administration of justice. The court has given its stamp of approval to mediation. The TCC also offers an Early Neutral Evaluation service, carried out by a TCC judge.

Expert determination plays a valuable role where the issue in dispute is narrow and specific eg a pure valuation dispute (where the answer can be determined by a chartered accountant, a quantity surveyor or some other such professional) or a dispute concerning whether a piece of equipment meets its performance criteria (where the answer can be determined solely by an appropriate technical expert). The expert does not act in a judicial capacity and there is no general obligation on an expert to apply the rules of natural justice (this should be contrasted with adjudication, arbitration and litigation where, unquestionably, rules of natural justice apply). Expert determination will generally be regarded as final and binding; the court will not interfere with an expert determination, even if it is plainly wrong (provided the expert has purported to answer the right question). It is, therefore, inappropriate as a general form of dispute resolution.

UK - Scotland

UK - Scotland

The Housing Grants, Construction and Regeneration Act 1996 introduced, as a new option in the dispute resolution process, a procedure known as 'adjudication', designed to help parties obtain a speedy decision. Parties to construction contracts now have a statutory right to adjudication. Contracts may also make express provision for adjudication, but the terms must comply with the Act; if they do not, a statutory scheme will automatically apply. The new Local Democracy, Economic Development and Construction Act 2009 has made some changes to the adjudication scheme, principally to provide that this now covers written and oral contracts.

The adjudicator must reach a decision within 28 days of the referral, but this period may be extended by up to 14 days with the consent of the referring party or indefinitely if both parties agree. This flexibility has allowed more complex disputes to be dealt with by adjudication which, otherwise, would have been referred to arbitration or litigation.

Mediation is a method of seeking compromise by referring a dispute to an independent third party who has expertise in the field of the dispute and skills at brokering a settlement. There are two main types; facilitative mediation (where the mediator effectively tries to facilitate a settlement between the parties, but without expressing any view on the merits) and evaluative mediation (where the mediator will give a non‑binding view as to the merits, the intention being that this view on the merits will engender settlement). In relation to construction disputes, mediation is generally a facilitative process and has grown in popularity.

Expert determination plays a valuable role where the issue in dispute is narrow and specific, eg a pure valuation dispute (where the answer can be determined by a chartered accountant, a quantity surveyor or some other such professional) or a dispute concerning whether a piece of equipment meets its performance criteria (where the answer can be determined solely by an appropriate technical expert). The expert does not act in a judicial capacity and there is no general obligation on an expert to apply the rules of natural justice (this should be contrasted with adjudication, arbitration and litigation where, unquestionably, rules of natural justice apply). Expert determination will generally be regarded as final and binding; the court will not interfere with an expert determination, even if it is plainly wrong (provided the expert has purported to answer the right question). It is, therefore, inappropriate as a general form of dispute resolution.

Ukraine

Ukraine

Ukrainian law does not provide for any obligatory forms of ADR to be used in construction dispute resolution. A pre-court procedure settling disputes (by means of submitting a claim and having it reviewed by the party at fault) is envisaged by the Ukrainian Code of Commercial Procedure, but this procedure is not compulsory provided that the parties have not agreed otherwise. Other forms of ADR are rarely used in Ukraine.

United States

United States

Disputes generally are resolved by litigation unless the parties mutually agree upon an alternative method to resolve the dispute, which might include mediation, arbitration, or a combination of methods. However, even if a party commences litigation, a judge may require the parties to enter into mediation in an attempt to resolve the dispute without further litigation. In such case, the parties would return to court and pursue resolution of the dispute via litigation only if the mediation is unsuccessful and the parties fail to reach a consensus. While not altogether uncommon, such requirement by a judge for mediation as a condition precedent to further litigation in court is the exception rather than the rule. It likely is more often used in family court than in resolving construction disputes, although each state has varying requirements.

A recent trend in some US states is to require a form of mandatory ADR as part of a state’s construction law reform, but these requirements generally relate to disputes involving residential/condominium construction. Otherwise, there generally has been no mandatory alternative dispute resolution method required by law as a first step in the dispute resolution procedure. Parties mutually may agree to submit to mediation prior to arbitration or litigation, but this has been voluntary on the part of the parties, not a legal requirement. However, the AIA construction contracts (see industry forms of agreement), without revision, provide for mandatory mediation as a prerequisite to engaging in binding dispute resolution, such as litigation or binding arbitration.

Zimbabwe

Zimbabwe

Complaints relating to engineers may first be submitted to the Engineering Council of Zimbabwe. Construction disputes are not obligated by the law to go through Alternative Dispute Resolution, although in most cases parties prefer them over all other means due to the speedy nature in which arbitration matters are dealt with. Additionally, parties may wish to appoint specialist arbitrators and this would not be possible within the formal court process.