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Dispute Resolution Provisions in a Construction Contract

The different forms of dispute resolution provisions seen in construction contracts are too numerous to describe. Nevertheless, the most common forms of dispute resolution provisions seen in southwestern Indiana include the following:

  • Arbitration with the American Arbitration Association
  • Litigation with the Judge being the final decision maker
  • Litigation with the jury being the final decision maker

There are pros and cons to each of these three forms of binding dispute resolution. Rather than discussing in detail those pros and cons, this article provides a brief overview of each of these forms of dispute resolution.

Arbitration with the American Arbitration Association will involve an arbitrator or multiple arbitrators deciding your dispute. The arbitrators will generally be lawyers with experience in the construction industry, but arbitrators can also be members of the construction industry that have expertise in construction. 

One of the benefits of arbitration is that your dispute will be decided by someone that has specific expertise regarding the construction industry. Another potential benefit of arbitration is that the length of time to resolve your construction dispute is sometimes less in an arbitration proceeding. Unlike a bench trial with the county judge, you will be required to pay an hourly fee for the arbitrator or arbitrators chosen to decide your dispute.

Litigation of a construction dispute to a judge (without the use of a jury) is another common form of dispute resolution seen in southwestern Indiana. The benefit of this type of litigation is the use of the judge to resolve your dispute, as opposed to a jury made up of people that may have no particular experience or expertise in construction. Nevertheless, it is also common that many judges in southwestern Indiana do not have any particular construction expertise. 

Litigation of a case to a county judge does not require the payment of an hourly fee to the judge. You will be required to pay a filing fee for filing your case, but you will not be required to pay the judge for his or her time. Since judges understand the rules of evidence and are good at analyzing the facts and the law as it applies to your dispute, this can be a good form of dispute resolution for your construction disputes.

Another option that is seen in many construction contracts in southwestern Indiana is litigation of your dispute to a jury. If you do not specifically waive the right to trial by jury in your construction contract, it will be up to the party that files the lawsuit to determine whether to request a jury trial of the dispute. 

One of the problems of litigating a dispute to a jury in the construction setting is that the jurors are unlikely to have any particular experience or expertise in construction. Another problem is that construction disputes frequently involve many different documents that were involved in the construction process. This construction documentation may be difficult for some jurors to fully understand.