How to Resolve a Construction Dispute Without Going to Court
5 May 2025 · infraADR
Disputes are an inherent risk in construction and infrastructure projects. Differences can arise over scope, time, cost, quality, contractual interpretation and the allocation of risk — often while the parties remain responsible for delivering the project together.
Litigation has an important role where an authoritative and enforceable judicial outcome is required. However, it is not the only pathway available. Depending on the nature of the dispute and the contractual framework, alternative dispute resolution (ADR) processes can provide a more targeted and commercially appropriate means of resolving issues.
Mediation
Mediation is a confidential process in which an independent mediator assists the parties to explore whether a negotiated resolution can be achieved.
The mediator does not determine who is right or impose an outcome. Instead, the mediator facilitates a structured process that allows the parties to examine the issues, test their respective positions and to explore and reach an acceptable commercial resolution.
This can be particularly valuable in construction, where the dispute may be only one part of a much larger commercial relationship.
Expert Determination
Expert determination can be particularly useful where a dispute involves a technical, valuation or specialist issue.
A dispute might concern the valuation of a variation, technical performance, defects, delay, scope or another issue requiring detailed industry knowledge.
The process is generally tailored to the particular dispute and, depending on the contract or agreed terms of reference, the determination may be binding or non-binding.
Expert determination can provide a focused and proportionate pathway to resolution.
Dispute Avoidance and Adjudication Boards
For major and complex projects, Dispute Avoidance and Resolution Boards can provide a mechanism for addressing issues as they emerge.
Typically established early in the project, the board develops an understanding of the project and its context over time. This can enable emerging issues to be considered before they develop into more entrenched disputes and, where required, provide a mechanism for recommendations or decisions.
That ability to intervene early can be particularly valuable on complex, long-term projects.
So which process is right?
There is no single answer.
The appropriate dispute resolution process depends on the contract, the issues in dispute, their value and complexity, the stage of the project, the relationship between the parties and whether a binding determination is required.
In some circumstances, a staged approach may be appropriate — beginning with senior-level negotiation or mediation and progressing, if necessary, to expert determination, arbitration or litigation.
The objective should be to select a process proportionate to the dispute and capable of supporting an effective commercial resolution.
infraADR provides independent dispute resolution services for construction and infrastructure projects across Australia. If a dispute is emerging, early consideration of the available resolution pathways can help identify the process best suited to the circumstances.
Speak with infraADR
infraADR provides independent dispute resolution services for construction and infrastructure projects across Australia. Early advice can make a significant difference to the outcome.