Construction court decisions

Dispute Resolution Journal, Feb-Apr 2003

Construction projects have an unfortunate propensity to generate disputes that require a neutral third party to resolve them. As a result, much ADR law has developed out of construction disputes. Two key construction cases are discussed in this issue.

HIM Portland LLC v. DeVito Builders, Inc. (summarized on p. 90), deals with the interplay between the mediation and arbitration provisions in a "step" ADR clause. The court reaches same result as the 11th Circuit in Kemiron Atlantic Inc. v. Aguakem International Inc., decided in May 2002, which is that a request for mediation is a condition precedent to arbitration that must be fulfilled.

ACEquip Ltd. v. American Engineering (summa- rized on p. 92), involves a party who used the adversary's motion for the court appointment of an arbitrator to seek a court hearing on the validity of the arbitration agreement. The court held that this was not permissible where there was a valid agreement to arbitrate.