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Alternative Dispute Resolution in the Construction Industry in Canada

Authoritative. Comprehensive. Practical. This unique text checks all the boxes for learning about alternative dispute resolution in the Canadian construction industry. ***Nominated for VanIAC’s Excellence in Arbitration Award in the Outstanding Book category!***
by Harvey J. Kirsh (Author)
Publisher: LexisNexis Canada
Publication Language: English
Book
$145.00
Quantity

Softcover | 290 pages

In Stock
Published: April 18, 2022
ISBN/ISSN: 9780433517122
Publisher: LexisNexis Canada

Product description

"In this excellent book, Harvey Kirsh assembles articles from leading Canadian alternative dispute resolution practitioners that reflect the current state of practice and thought in the area… This book is a welcome addition to the short catalogue of Canadian books on alternative dispute resolution. It provides a useful, practical resource for those in the construction industry and, indeed, all alternative dispute resolution practitioners. It is one to be kept close at hand.”

Julie G. Hopkins, CIArb
Independent arbitrator in Calgary, AB with 25+ years of experience in dispute resolution

See the full review in the Construction Law Letter, November/December 2021 Issue (38:2)


***Nominated for VanIAC’s Excellence in Arbitration Award in the Outstanding Book category!***

When it comes to resolving construction claims and disputes, alternative dispute resolution (ADR) is not only the future, it is also the evolving present. That’s why it is so important for lawyers and those in the construction industry to learn how to navigate the often unfamiliar and sometimes difficult path to achieving success in securing the best possible result by selecting the most appropriate type of ADR proceeding and pursuing it to a resolution. This new volume, Alternative Dispute Resolution in the Construction Industry in Canada, provides invaluable insight into that all-important process.

Essential Reading
The only book of its kind in Canada, Alternative Dispute Resolution in the Construction Industry in Canada is a tremendous practical resource and research tool for those who may be involved in the arbitration, mediation or other non-litigious process of resolving construction claims and disputes arising out of residential, institutional, commercial and industrial projects. It will also be useful for anyone dealing with the resolution of disputes related to wind, solar and electricity projects; mining, pipeline, and oil and gas projects; water and waste management projects; bridges, roads and transportation (such as subways and LRT); communications projects; and all other forms of infrastructure.

This publication is comprised of a collection of 40 essays which focus exclusively on ADR options and processes in the Canadian construction industry. Harvey Kirsh, a recognized expert in both construction law and alternative dispute resolution, is not only the editor of this text, but has shared his knowledge and experience by contributing many of the essays. He is joined by an impressive roster of renowned, award-winning and distinguished judges, lawyers, ADR advocates, neutral facilitators, academics, engineers and chartered surveyors. These contributors – all experts in their field – impart their wisdom, professional experiences, illuminating war stories and ingenious tricks of the trade. The result is a truly incomparable resource!

Described as a “timely and valuable addition to the Canadian legal lexicon” by the Right Honourable Richard Wagner, Chief Justice of the Supreme Court of Canada, Alternative Dispute Resolution in the Construction Industry in Canada will serve as a useful reference for lawyers, including in-house counsel, who are practising in the area of construction law and anyone who seeks to effectively employ alternative dispute resolution mechanisms in their practice.

 

Product reviews

It is about time!
by John Murphy, President of the Canadian College of Construction Lawyers & National Managing Partner/CEO, Borden Ladner Gervais

It is about time! And there is no one better to provide a definitive and comprehensive compendium of easy-to-read essays on a wide range of ADR topics and considerations than Harvey Kirsh.

I highly recommend Mr. Kirsh’s book as it sets out the important concepts which, if well understood, will assist the reader in either advising their client on a range of strategies or avoiding a mechanism not suited to the circumstances. Alternatively, if chosen by the parties to lead an ADR process, the reader will find in this book ample tips and insights on how best to assist the parties in achieving their ultimate goal.

With the advent of ADR in Canada, and the courts’ general deference to arbitrations, it is important to have a book that covers the gamut of options and offers an in-depth review of the processes: from the pre-hearing meetings, to the meetings and hearings and potential appeals.

Mr. Kirsh’s section on the scope of the arbitrator’s questioning of witnesses should be deeply understood by the parties accepting to proceed with an arbitration. He also expands on the use of innovative concepts such as the chess clock and the Scott Schedule, which are important to consider and allow the arbitral process to be more creative, purposeful and responsive to the clients’ need for justice.

For anyone drafting construction contracts or advising clients when embarking on an ADR process, Mr. Kirsh’s book is a must-read!

Featured Authors

Harvey J. Kirsh

Harvey J. Kirsh

Harvey J. Kirsh is a recognized authority in construction law, and was the recipient of the Ontario Bar Association's Awards of Excellence in both Alternative Dispute Resolution (2015) and Construction and Infrastructure Law (2018). He was certified by the Law Society of Upper Canada as a “Specialist in Construction Law”, and, designated as a Chartered Arbitrator by the ADR Institute of Canada, has more than 45 years of experience in the arbitration, mediation and litigation of complex construction claims and disputes arising out of significant infrastructure, public-private partnership (P3), transportation, energy, resource, industrial, commercial, institutional, and residential projects, both domestically and internationally. Harvey was the First President, a Founding Fellow and a Governor of the Canadian College of Construction Lawyers and is currently an Emeritus Fellow; is an Emeritus Fellow of the American College of Construction Lawyers; and is a Retired Fellow of the College of Commercial Arbitrators.

Harvey has authored numerous books and articles and has chaired many conferences and seminars in Canada and the United States on various aspects of construction law and alternative dispute resolution. He is also the Founding Editor-in-Chief of the Construction Law Reports (published by Carswell), the Founding Editor-in-Chief of Kirsh’s Construction Lien Case Finder (published by LexisNexis), and the Founding Editor of the Construction Law Letter (published by LexisNexis). He has also been an Adjunct Professor at the Faculty of Law, University of Toronto, where he created and taught a course entitled "From Blueprints to Buildings: Legal Issues in the Construction Industry".

View all books by Harvey J. Kirsh (7)

Table of contents

The Right Honourable Richard Wagner, P.C. Chief Justice, Supreme Court of Canada – Foreword
 
 Harvey J. Kirsh – Introduction
 
 CHAPTER I: ARBITRATION
 Harvey J. Kirsh – Pitfalls, Perceptions and Processes in Construction Arbitration
 
 Colloquium of Selected Construction Law Issues (Arbitration)
 
 Harvey J. Kirsh – The Preferences, Practices and Rules Interpretations of Construction Arbitrators
 
 Harvey J. Kirsh – Conflict of Interest and Construction Arbitrators: Requirement for Disclosure and Transparency
 
 The Right Honourable Beverley McLachlin – Concurrent Expert Testimony
 
 Duncan W. Glaholt and Markus Rotterdam – Arbitrator Questioning: Sphinx or Skeptic?
 
 Hon. Neil Wittmann, Q.C. – Using a “Scott Schedule” in Arbitration
 
 Harvey J. Kirsh – The Use of a Chess Clock in Construction Arbitration Proceedings
 
 Jack Marshall, Q.C. – The Arbitrator's Dilemma When Counsel Fails to Address Relevant Legal Authority
 
 Harvey J. Kirsh – Dissent in Construction Arbitration
 
 Joel Richler – Appeals in Canadian Construction Arbitration
 
 Harvey J. Kirsh – Construction Arbitration and Settlement
 
 Karen Martin and Alim Khamis – Lien Actions and Arbitration
 
 Olivier F. Kott – The Advantages of a “Civil” Approach to Arbitration
 
 Harvey J. Kirsh – My Life as a Construction Arbitrator
 
 CHAPTER II: MEDIATION
 Stephen R. Morrison – The Better Way: Pre-Litigation Mediation of Construction Disputes
 
 Dean B. Thomson – Early Mediator Engagement: Lessons from Master Mediators
 
 John Lande – Getting the Benefit of Planned Early Dispute Resolution in Construction Projects
 
 Colloquium of Selected Construction Law Issues (Mediation)
 
 Duncan W. Glaholt – My Role as Construction Mediator
 
 Stephen R. Morrison – Complex Multiparty Commercial Mediation: Challenges and Strategies
 
 John (“Buzz”) Tarlow – In Defence of Lying: The Ethics of Deception in Construction Mediation
 
 Allan J. Stitt – A “Failed” Mediation
 
 Harvey J. Kirsh – When is “Mandatory Mediation” Not Mandatory?
 
 Harvey J. Kirsh – Binding Mediation: An Oxymoron?
 
 CHAPTER III: MED-ARB
 David McCutcheon – Med-Arb Dispute Resolution
 
 André Simard – Simultaneous Med-Arb, Why Not? The Quebec Experience
 
 CHAPTER IV: ADJUDICATION
 Howard Krupat and Emma Cosgrave – Construction Adjudication: An Overview
 
 Robert Bales – Construction Adjudication, Nominating Authorities, and Adjudicators: Lessons Being Learned
 
 Glenn Ackerley – The Authority and Jurisdiction of Construction Adjudicators
 
 CHAPTER V: REFERENCES
 Harvey J. Kirsh – References and Construction Claims
 
 CHAPTER VI: EXPERT DETERMINATION
 Harvey J. Kirsh – The Use of Expert Determination in Resolving Construction Disputes
 
 Allison Kuntz – Expert Determinations
 
 CHAPTER VII: DISPUTE BOARDS
 Harvey J. Kirsh – Dispute Review Boards: An International and Domestic Cutting-Edge ADR Process
 
 Donald L. Marston – Dispute Resolution Boards and Dispute Adjudication Boards: ADR for Infrastructure Projects
 
 Duncan Glaholt – Chairing Dispute Boards
 
 Harvey J. Kirsh – Where Dispute Resolution Boards Do Not Work
 
 CHAPTER VIII: CONSTRUCTION ADR - GENERAL
 Harvey J. Kirsh – The Alternative Dispute Resolution Processes in Canada’s New CCDC 2-2020 Construction Contract
 
 David I. Bristow, Q.C. and Jesmonde Parke – The Gathering Storm of Arbitrators’ and Mediators’ Liability
 
 Harvey J. Kirsh – ADR Sanctions
 

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