chapter  14
Pages 44

Traditionally, dispute resolution meant resort to the courts with the attendant delay, costs and frequently unsatisfactory results. Especially in a construction setting, the complexity of disputes has inevitably increased the expense and delay of both litigation and arbitration. There is increasing interest in various other ways in which these confl icts could be resolved. Such possible avenues are known collectively as “Alternative Dispute Resolution” (ADR).714 The current trend towards an alternative form of dispute resolution originated in the United States, where a number of court-related factors contributed to the development of ADR, which included:

(a) the constitutionally guaranteed right to jury trial for “suits at common law”; (b) the absence of any general system of “fee-shifting” in civil litigation, so

that each party must bear its own costs regardless of the outcome; (c) the absence of any national system of judicature; (d) the poor quality of some judges, due to low pay and/or erratic selection

procedure (including election); and (e) congestion of the court system.