RC125 JulyAug 2026 - Magazine - Page 30
LEGAL
When disagreements arise
on significant construction
and infrastructure projects,
should parties continue to rely
on dispute resolution tools that
resolve issues only after
the fact, or should they make
greater use of real-time tools,
like standing neutrals, to
help prevent contentious
matters from escalating into
litigation or arbitration?
alone and act in either capacity, depending
on what a project’s contract speci昀椀es. Each
model carries di昀昀erent consequences for
昀椀nality and risk allocation, and selecting
among them is itself a meaningful
contractual choice.
Standing neutrals often combine legal and
technical expertise, as construction disputes
are often technical matters that escalate into
legal claims. Determining the genesis of a
dispute and who is responsible for it requires
construction experience, accepted methodologies, and technical judgment. Without that
input, project teams may advance positions
not grounded in the kind of analysis an independent expert would apply.
Providing standing neutrals capable of
addressing both the legal and technical
complexities gives the parties the
appropriate expertise based on whether the
dispute is predominantly legal or technical.
Legal expertise can help the parties navigate
their contracts’ structure, rights, and
remedies. Technical expertise can provide a
practical assessment of delays, productivity,
valuation, and other issues a昀昀ecting the
project. Used this way, expert determination
resolves discrete technical issues e昀케ciently,
without the cost and procedural burden of
formal adjudication.
A standing neutral resembles o昀케cials in a
hockey game or other athletic competition.
Teams don’t play games to completion only
to bring in a referee at the 昀椀nal horn to decide
where penalties should have been called. O昀케cials monitor the game as it happens, ensuring
it proceeds smoothly and staying out of the
way unless needed. A good referee stays as far
out of the game as possible; they’re present,
attentive, and engaged only when the game
requires their intervention.
The benefits of early neutral involvement
The same logic applies to a standing
neutral’s role in major construction and
infrastructure projects. When a dispute
arises, the neutral need not spend months
poring over project documents and records
before providing assistance. Beyond their
legal or technical authority, standing neutrals
bring value to a construction project through
their intimate knowledge of the project itself.
Assessment • Planning • Compliance
30—RENEW CANADA – JULY/AUGUST 2026
RENEWCANADA.NET
