occurred, where a party initiating an adjudication hands in the required docu- ments right before a holiday to burn up some of the allotted time span for reso- lution, putting added pressure on the other party to formulate their response. Glaholt noted that the process being adopted in Ontario has a degree of flexibility built into it that allows an adjudicator to respond accordingly if either party seeks an unfair advantage. “What Bruce and Sharon have built into the adjudication scheme allows for an unequal division of the cost burden of adjudication,” he said. “I wouldn’t call it a penalty, but the adjudicator can make an uneven distribution of those costs if someone’s abusing the system. I think there will be adjudicators that say, ‘Well, wait a minute, what you tried to do here was unfair.’ You have to have an adjudi- cator who knows the process, how to strike a balance.” Nonetheless, adjudication, which takes much less time than a legal case to resolve, does give the initiating party an advantage in time. Reynolds observed that the construction industry will have to get better at managing incipient disputes given that time disparity. Both contractors and owners, he said, will have to be aware of where disputes may be likely to arise and learn how to ‘project manage’ those issues before they become disputes. “One might believe the contractor has the kind of advantage that Duncan refers to, by knowing that they’re going to advance a dispute and prepping in advance so as to gain an advantage. On the owner’s side of the relationship, the fact that there is an incipient dispute is also typically identifiable. You need, as an owner, to task people to get their arms around that dispute at an earlier stage so that you don’t expose yourself to the smash and grab.” Glaholt said that he believes the short time frame is one of the factors that contributes to the success of adjudication CEO PANEL DISCUSSION as a dispute resolution mechanism. “You can’t do what you often do now, which is send the dispute to someone else to resolve. You can’t parcel it out to a lawyer and let that agent fight the battle for you. The parties are going to be taking the time to engage with their dispute, maintain ownership of their dispute in a real-time environment, and resolve it. I think that level of engagement is one of the factors that makes adjudication work as well as it does.” |BD Builders' Digest Quarter 4 2017 | 17