It was the best of provisions; it was the worst of provisions, crafted by the wise and well-meaning alike. For years, construction documentation has been primarily sourced from the American Institute of Architects. The AIA provided guidance through the publication of contractual provisions involving many aspects of the construction process, including alternative dispute resolution, or ADR. It has been observed that the documentation provided by the AIA generally favored both owners and architects, whose forms, as used by contractors, typically required amendment and modification. So much so that in 2007 a group of owners, contractors, subcontractors, designers and sureties came together and published their own set of construction contract documents called ConsensusDocs, and updated it in 2017.

For construction practitioners, serious consideration must be paid to the ADR provisions up front, as a failure to understand and allocate the tail risk can have dire consequences; hence, a tale of two approaches to ADR.

Originally published in Law360 on May 7, 2018.