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Alternative Dispute Resolution in the Construction Industry in Canada

This book is a tremendous practical resource and research tool for those may be involved in the arbitration, mediation, or other non-litigation process of resolving construction claims.
Publication Language: English

Softcover | Approx. 150 pages

This Product is on PreOrder
Published: April 29, 2022
ISBN/ISSN: 9780433517122

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)

Alternative Dispute Resolution in the Construction Industry in Canada is a tremendous practical resource and research tool. There is no other Canadian book – nothing like it – which uniquely focusses on alternative dispute resolution alternatives and processes in the construction industry in Canada.

Features of This Book
ADR is the future, but it is also the evolving present. It is important for lawyers and those in the construction industry to learn to navigate the sometimes unfamiliar and difficult path to achieving success in securing the best possible result in selecting the type of ADR proceeding and in pursuing it to a resolution.

This book is both authoritative and comprehensive, while also being practical and reader-friendly. Each chapter is devoted to a specific ADR process – arbitration; mediation; med-arb; adjudication; references; expert determination; and dispute boards – which may arise out of residential, institutional commercial and industrial projects; as well as 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); communication projects; and all other forms of infrastructure.

The book also includes an essay which canvasses the dispute resolution provisions contained in the new CCDC 2-2020 construction contract and in the companion CCDC 40-2018 guide which embodies the “Rules for Mediation and Arbitration of Construction Industry Disputes”.

The 40 essays in the book are written by renowned, award-winning and distinguished judges, lawyers, ADR advocates, neutral facilitators, academics, engineers, and chartered surveyors – all experts – who have shared their dedicated expertise, professional experiences, illuminating war stories and ingenious tricks of the trade.

In addition to articles written by Harvey J. Kirsh, other expert contributors include The Rt Hon. Beverley McLachlin (former Chief Justice, Supreme Court of Canada); Hon. Neill Wittmann, Q.C. (former Chief Justice, Court of Queen’s Bench of Alberta); David I. Bristow, Q.C.; Allan J. Stitt; Jack Marshall, Q.C.; Duncan W. Glaholt; Stephen R. Morrison; and Joel Richler. The Foreword is written by The Right Honourable Richard Wagner, P.C., Chief Justice of the Supreme Court of Canada.

Who Should Read This Book

  • ADR Lawyers, Arbitrators and Mediators – To help serve clients as well as in-house counsel seeking their assistance in a field that is constantly changing and evolving and is relatively new and unprecedented in Canada
  • In-House Counsel – To have as a compliance guide
  • Engineers, Architects, Contractors, and Construction Trade Associations – To stay up-to-date on the law
  • Law Students and Law Libraries – For academic and research purposes

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

Table of contents

The Right Honourable Richard Wagner, P.C. Chief Justice, Supreme Court of Canada – Foreword

Harvey J. Kirsh – Introduction

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

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

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?

David McCutcheon – Med-Arb Dispute Resolution

André Simard – Simultaneous Med-Arb, Why Not? The Quebec Experience

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

Harvey J. Kirsh – References and Construction Claims

Harvey J. Kirsh – The Use of Expert Determination in Resolving Construction Disputes

Allison Kuntz – Expert Determinations

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

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