b'BENCHMARKSCONCRETE BENEFITS: THE ADVANTAGES OF ARBITRATION IN CONSTRUCTION DISPUTESBy Daryl Chicoine, Partner, MLT Aikins LLP;John Martens, Partner, MLT Aikins LLP; Braeden Cornick, Associate, MLT Aikins LLPMany construction contracts containmore efficient, cost-effective number of court decisions confirming clauses that make arbitration the primarydispute resolution; the enforceability of arbitration clauses. method of dispute resolution, but do The parties can select an arbitratorWhile construction contracts typically such clauses offer actual benefits infocus on disputes related to deficiencies, resolving disputes?who is experienced in constructiondelays, significant changes in scope law or has specific expertise in theof work and other payment issues, the Arbitration can speed up the typicalsubject matter of the dispute; and courts have approved a broad reading of processes associated with dispute Arbitrations are private matters,arbitration agreements and the authority resolution before a court, fromof arbitrators to rule on other disputes. disclosure to discovery to trial.and the outcome, including anyArbitrators are not limited to hearing Ultimately, deciding to require arbitrationnegative comments or findings, isbreach of contract disputes and can in a construction contract will depend onnot immediately available to anyonebe utilized where other claims, such as the goals of the contracting parties. not involved in the arbitration. negligence, are alleged. For example, a WHAT ARE THE Generally speaking, arbitration canbreach of contract dispute also involving BENEFITS OF ARBITRATION? provide a timelier and more cost- a claim of negligence may be heard by An arbitration clause represents aneffective outcome than the traditionalan arbitrator, even though the concept of agreement between the contractingcourt process if the parties are willingnegligence is primarily derived from case parties that disputes will be decided byto customize the arbitration processlaw. With a few exceptions, the scope a selected individual or, if the partiesto match the complexity and numberand extent of arbitration and the authority cannot agree on an individual, by aof issues in dispute. The benefits ofof the arbitrator will be governed by the court-appointed arbitrator. Appointingarbitration are usually achieved byterms of the arbitration clause invoked by an arbitrator offers a number ofplacing limits on the disclosure ofthe parties.opportunities and benefits, some ofdocuments and the examination ofIMPORTANT CONSIDERATIONSwhich include: witnesses, and by imposing aggressiveFOR DISPUTE RESOLUTIONtimelines that may limit the length of theThere are several importantThe parties are not bound by thehearing and the discovery process.considerations for resolving constructionformal rules of evidence or theIN WHAT TYPE OF CASES ISdisputes by arbitration or through court:procedures of the court; ARBITRATION AVAILABLE? CCDC Arbitration Clauses The parties can customize and tailorThe use of arbitration has increasedUnder most CCDC contracts, thethe arbitration process to provide agradually over the years thanks to aconsultant has the authority, in the first 36 BUILD MANITOBAwinnipegconstruction.ca'