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.ADR as a claim settlement process which likelyoriginated in the construction industry, and has been around for over aquarter of a century.It is now an established and respected settlementprocess which has been universally accepted in all industries.The ADRprocess can be used to settle professional differences of opinion in anycontract, subcontract, procurement, and frequently in corporate teamingarrangements.While there are various gradients in the ADR process which are stillevolving, the two most common forms of ADR are Mediation andArbitration.We should understand the differences between these twoprocesses.Settlement by MediationMediation in a nutshell is a facilitated negotiation and settlementbetween the parties.The Buyer and Seller cannot reach a negotiatedsettlement by themselves, often as a result of emotions, they are "pissed-off" at each other, so they bring in an impartial third party, a mediator, tohelp reach an agreement.It often works.The role of the mediator is to bring both sides together.Both sides aregiven the opportunity to present their position.A mediator will thenattempt to gain concessions from both sides, until an agreement can bereached.Mediation is a flexible, informal process.Costs are minimal,often simply the hourly rate of a qualified professional mediator.The finalresults and settlement values are controlled by the Buyer and Seller, andare known only to them.Either side can accept or reject the position, it isentirely up to them.The mediator will often prepare a settlementmemorandum for both parties to execute.It is a relatively fast process.The settlement of Seller claims by mediation is highly desirable, andclosely resembles the results of a negotiated settlement by both parties.Settlement by ArbitrationThe next more formal ADR settlement process is called arbitration.Close-out of Contracts (Procurements) 235Arbitration is perhaps more beneficial than formal litigation, but nev-ertheless more closely resembles a formal trial in a court of law.Thedisputing parties by their agreement bring in a professional arbitrator, orreferee, or quasi-judge to settle their disputed issues.By their Arbitration Clause inserted in the contract, the findings of thearbitrator can be "voluntarily accepted" which means they can also berejected, or the findings can be "binding" on the parties, which means theycannot be rejected.However, most courts on appeal have generallysupported the findings of the professional arbitrators.While arbitration does resemble a court of law, and both sides aretypically represented by their respective lawyers, the governing rules aremore relaxed than with formal litigation.Both sides have greateropportunities to introduce evidence that would not normally be allowed in acourt of law.Participants will give their testimony under oath, and theregenerally is pre-trial discovery to isolate the key issues.Arbitration is usually less costly than litigation, but considerably morecostly than mediation.If arbitration is to be used, an Arbitration clauseshould be inserted in the contract specifying the intent of all parties.Project Close-out ChecklistThe close-out of projects should be performed in an orderly and sys-tematic way in order to best protect the interests of the project owner, thepeople who are paying the bills.An experienced project manager, one whohas been there before, provided us with a checklist of issues which shouldbe covered when closing out any project.He suggests that the followingdocumentation should be preserved on any project:A.Project Office (PO) and Project Team OrganizationB.Instructions and ProceduresC.FinancialD.Project DefinitionE.Plans, Budgets, and SchedulesF Work Authorization and Control236 Project Procurement ManagementG.Project Evaluation and ControlH.Management and Customer ReportingI.Marketing and Contract AdministrationJ.Extensions New BusinessK.Project Records ControlL.Purchasing and Subcontracting Liaison and PoliciesM.Engineering Documentation6N.Site OperationsMemo to the file: Lessons-learnedThe last issue to be discussed in the systematic closeout of any projectis something we know we should do, but rarely ever take the time [ Pobierz całość w formacie PDF ]