Over the past few years, there has been much discussion about conflict avoidance and relationship management in the construction sector, particularly around the use of Dispute Review Boards. Whilst many may think that these Boards are a relatively new technique in dispute resolution, they
I have recently been reading a lot about conflict avoidance and relationship management in the construction sector. And I have discovered that Dispute Review Boards are far from the new kid on the block. In fact, they’ve been around since the 1960s, and it seems they’ve been an extraordinarily successful ADR process.
It seems DBs originated in the United States in the 1960s, and the first mention of them was a “Joint Consulting Board” which was established for the Boundary Dam in Washington. The idea behind the board was to have people embedded throughout the lifetime of the project to make quick decisions the moment any sign of a conflict arose. This is the essential purpose of dispute boards today.
In the 1970s there were 6 major US tunnel projects that used dispute boards, including the massive Colorado Eisenhower Tunnel. Their role was to make non-binding recommendations to the parties in case of a conflict. Between 1986 and 1994, another 349 US projects used DBs.
DBs have been a success in many areas and have helped multiple parties avoid disputes altogether. According to a report by Kings College London, 50% of Individuals and 32% of Entities reported that the Dispute Board adopted dispute avoidance measures ‘very often or always’.
The idea behind DBs is simple. It is to create a panel of neutral experts before the project commences to work alongside the contracting parties and become expert in resolving their disputes on that project.
The contracting parties agree upfront to establish a dispute review board and provide the board with non-binding, interim jurisdiction over their disputes.,
as required. Three-member boards are most common on large projects. The key to selection is subject matter expertise. Appointment to a DB is not for the inexpert dabbler or amateur. On a large hospital project, for example, board members may be elected for their expertise in surveying, contract interpretation, and engineering, perhaps specifically in the public health sector.
Members of a DB will meet regularly (monthly, or at least quarterly on a large project), tour the project every now and then, and routinely hear claims and disputes over the lifetime of the project.
In 2025, DBs have reached a level of sophistication where the needs for professional standards and ethics for board members are key. Board members must also be impartial and be always seen as independent. Before accepting a role on a DB, a professional must disclose any interest or relationship that could possibly be viewed by a reasonable person as impacting on their independence or that might create even an appearance of partiality or bias, throughout the life of the DB. Even the appearance of possible conflict of interest must be avoided. There should be no informal, off the record, communications between a DB member and any of the parties.
Nothing a board member learns in their role on a DB must be used for personal advantage (except, perhaps, to promote oneself as a DB member).
The mechanics of a functioning DB are very simple. The Board is provided with the parties’ contract documents at the very outset of the project. The DB members familiarise themselves with the project and the key participants and are regularly updated regarding progress. Regular site visits are scheduled, attended by the designated party representative and the members of the DB. Senior party representatives will sometimes make presentations to the board.
Construction contracts can provide that both parties may jointly refer an issue to the DB before it becomes a formal “dispute.” Once a formal dispute has arisen, either party may refer the matter to the DB which will adjudicate and make a decision on the issue. The parties decide beforehand if the adjudication is to be binding or non-binding.
Some contracts go further and provide that the DB may intervene on its own, without the parties’ consent.
A key benefit of a DB is its ability to nip disputes in the bud; parties trust the DB to undertake this role because it is comprised of subject experts who are skilled in conducting proceedings, evaluating evidence and writing sensible reasoned decisions.
Adjudication hearings are held as soon as possible after receipt of the referral, or within a timescale previously set out in the contract. A hearing will be at a location agreed upon by the parties, often on the project site or at a local hotel boardroom. The claimant usually presents its case first, followed by the respondent and one or more cycles of replies and rebuttals. The DB chair will usually take control over the hearing and will decide the agenda, including the format, timetable and what submissions are to be presented.
The DB will usually issue a written reasoned decision or recommendation within a matter of weeks after and can often do so earlier.
A DB’s recommendations should explain the board’s assessment of the evidence presented, contract provisions and include the reasoning which led to its conclusion.
Subject to the terms of the contract, a DB’s recommendations may not be binding if either party objects. If no party objects within a prescribed period of time, recommendations will usually become contractually binding. If a party refuses to accept a recommendation, the contract usually provides for recourse to some further dispute resolution process to occur after substantial performance or, in some cases, total completion of the project. This may mean the matter is finally determined by arbitration if the contract contains an arbitration clause.
A party’s failure to accept a DB’s recommendation may not in itself entitle the other party to stop performance.
DB’s, are now a mature are now a well-recognised contractual measure across the globe. Their success is due largely because of the impartiality, expertise, substantive knowledge and professional integrity of the persons appointed to the board.