RC125 JulyAug 2026 - Magazine - Page 31
By the time a dispute has made its way
to mediation, arbitration, or litigation, the
people charged with resolving it are often
piecing things together from documents—
emails, meeting minutes, site reports,
witness statements, and narratives—some
of which have been prepared well after the
fact, each one shaped by the case the party
preparing it needs to make. A better case
is presented by all parties when people
involved in real-time decision-making can
present their position, rather than having to
litigate years later based on a noncontextual
evaluation of the project correspondence.
The neutral who has been involved in the
project from day one knows the contracts
in play, the project’s history, the parties
involved, the history between them, how
stakeholders interact, and the early signs of
di昀케culty as they appear. In the absence of
a standing neutral, parties can take obtuse
positions—for example, assigning blame for
shipping delays—because their contracts’
dispute resolution process likely rewards
such behavior.
A neutral with knowledge of the project,
on the other hand, can identify a nofault delay as such and prevent it from
metastasizing into a contested claim. And
their ongoing, proactive role allows them
to take prompt action before the parties
become so entrenched in their positions that
resolving a dispute becomes exponentially
more di昀케cult.
The case for broader adoption
The neutral concept itself is not new. Dispute
review boards have been used in major
international infrastructure projects for
decades, including FIDIC-form contracts and
World Bank-funded projects, with success
on tunnels, dams, and large transportation
projects. However, the standing neutral
concept is relatively uncommon in Canadian
construction contracts, aside from limited
examples such as major infrastructure
projects in which a dispute review board is
appointed at the outset. The construction
industry would be well-served to adopt
these tools more broadly for use on all types
of projects, not just large infrastructure. For
owners who have seen major projects fail,
the need for the dispute resolution approach
that standing neutrals o昀昀er is becoming
harder to ignore.
Canadian public-sector owners and repeat
purchasers of complex infrastructure are
likely to bene昀椀t the most from standing
neutrals. They can help prevent the delays,
costs, strained relationships, and public
scrutiny that unresolved disputes introduce.
The monthly cost of retaining a neutral over
the life of a project is modest when measured
against a single arbitration, and trivial when
measured against poor project outcomes.
Owners can adopt provisions to incorporate
standing neutrals into their construction
contracts, whether written directly into their
bespoke agreements or added to standardform contracts through supplementary
conditions.
There remains a place for mediation,
arbitration, litigation, and adjudication. But
standing neutrals provide an often-e昀昀ective
means of managing con昀氀ict during major
construction and infrastructure projects so
that a smaller proportion of disputes needs
to reach those forums.
G A R D I NER EXPRESS WAY REHABILITATION
TORONTO, O N
BY LISTENING CLOSELY
TO COMMUNITIES,
We deliver
we work alongside Indigenous partners
to deliver sustainable solutions
that enhance everyday life.
uncompromising
performance.
STRUCTURAL
ENGINEERING
BUILDING
ENVELOPE
SUSTAINABILITY
CONSULTING
VANCOUVE R | CALGARY | EDMONTON | TORONTO | OT TAWA
entuitive.com
RENEWCANADA.NET
At CIMA+, we bring proven expertise
in developing resilient, sustainable
infrastructure that re昀氀ects local priorities,
from early community planning to the delivery
of essential services. In every project
we undertake with Indigenous communities,
we are commi琀琀ed to building strong,
lasting relationships grounded in trust,
shared knowledge, and mutual respect.
Learn
more
JULY/AUGUST 2026 – RENEW CANADA 31
