AAA Handbook on Construction Arbitration and ADR - 2nd Edition - Electronic
AAA Handbook on Construction Arbitration and ADR - 2nd Edition - Hardcover
DISPUTE RESOLUTION USING A NEUTRAL
Numerous dispute avoidance, prevention and resolution methods
exist that can save time, money and relationships. This chapter examines
a variant of one of these methods that proved quite successful in
resolving post-construction disputes in the merchant housing setting; it
involves the use of a neutral architect in a manner similar to that of a
standing neutral or dispute review board.
The difference between merchant housing and most other projects
involving a standing neutral is that the neutral comes on board after the
construction project has already been completed and occupying home
owners have lodged complaints against the developer through their home
owner association (HOA).
One reason for the frequently repeated pattern of litigating disputes
arising out of merchant housing projects is that the traditional
relationship between the builder and owner does not exist. The builder is
usually a developer—often a large entity whose focus is on market
share—who builds the project for future buyers—as opposed to a
contractor or tradesman retained by the owner to construct the project.
The buyers—the ultimate owners—are not the traditional client, because
ownership of the project does not occur until the project is completed, or
nearly completed, as individual homebuyers who form an HOA typically
run by a lay governing board.
Jack Kemp, a member of the American Institute of Architects, is one of three Principals in Charge at Weir/Andrewson Associates, Inc. in San Rafael, California. He serves on the roster of neutrals for complex construction cases for the American Arbitration Association. Mr. Kemp was the neutral architect on the projects described in this article.