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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!***
Publication Language: English
Book
$120.00
Quantity

Softcover | 290 pages

In Stock
Published: April 18, 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)



***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

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