Experience proves that the months immediately prior to substantial completion or mechanical completion are crucial. Lingering commercial issues surface. Issues grow and combine, leading to restriction of cash flow, positional bargaining, and all-too-often wasteful forensic dispute resolution procedures.
There is a systematic way to manage, reduce, and eliminate these project closeout disputes:
Phase 1: Identification
In the first 30 day period, I work with the parties, their lawyers, and their consultants to understand, categorize, and define issues standing in the way of orderly contractual and commercial closeout. Together, we develop and agree on Phase 2 timelines.
Phase 2: Adjudication
I adjudicate identified core issues where a negotiated solution is not possible, producing summary written, reasoned, interim binding determinations. All adjudicated determinations are made within a single payment cycle. These adjudicated determinations remain binding upon the parties until displaced by agreement (by subsequent mediation, for example) or arbitral award on a full record (Phase 3).
Phase 3: Arbitration
I arbitrate any remaining disputes on a full evidentiary and legal record, using the schedule developed and agreed to during Phases 1 and 2. This phase is closely modeled on ICC procedures, involving evidence in chief by affidavit, agreed time limits on hearing time, and a reasoned, final, and binding arbitral award within three months of final submissions.