ARBITRATION AND ALTERNATIVE DISPUTE RESOLUTION

1. Introduction
2. Binding Arbitration
   1. Architect/Engineer - Decision Clauses
   2. Compelling Arbitration under the Texas General Arbtration Act
   3. Common Law Arbitration
   4. Compelling Arbitration under the Federal Arbitration Act
   5. Scope of the Arbitration Clause
   6. The Waiver of the Right to Arbitrate
3. Procedural Aspects of Arbitration
   1. Selection of Arbitrators
   2. The Hearing Location
   3. Discovery
   4. Hearing Procedures
   5. Joinder / Consolidation
4. Enforcing the Arbitration Award
   1. Texas General Arbitration Act
   2. United States Arbitration Act
5. Non-Binding Dispute Resolution Techniques
   1. The 1987 Alternate Dispute Resolution Act
   2. Mediation
   3. Moderated Settlement Conference
   4. Non-Binding Arbitration
   5. Non-Binding Trial Techniques

Attachment 1: Order of Referral for Mediation

Attachment 2: Rules for Mediation

Attachment 3: Attorney's Information Sheet and Request for Mediation

Abstract

The modern party to a construction lawsuit is often times faced with interminable delays and expense in order to get his case to the Courthouse. Once the case is tried, a litigant's expectations may be further frustrated by the fact that the fact finder is not familiarwiththeintricaciesofconstructionpractice. Inaneffort to avoid the above circumstances, many contractors and their counsel are giving serious consideration to alternative methods of resolving their disputes. Generally speaking, the alternatives include arbitration, mediation and mini trials.

The increasing use of alternative dispute resolution seems mandated by the overwhelming congestion facing federal and state courts.

Alternative methods may be binding or non-binding depending on the agreementofthe parties. Generally, a Texas construction lawyer will deal with binding arbitration provisions in a construction contract or will face a non-binding method suggested by the court once a dispute has reached the courthouse. Sections II, III and IV of this paper assume that there is a binding arbitration clause in the construction contract.

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