Imagine you're at a party, the conversation is flowing, and before long, the inevitable question arises: "So, what do you do for a living?" You take a deep breath, ready to explain: "I’m a Dispute Board Member." A brief pause, and then it comes – almost predictably: "Oh, so you're a mediator?" Or, "Ah, so you’re like an arbitrator?"

In that moment, you realise you’re facing a challenge. How do you briefly and clearly explain what a Dispute Board Member is and how it differs from mediation, conciliation, or arbitration? You can see the question marks in their eyes, but the real answer is more complex – and far more interesting – than they expect.

Curious? Keep reading to discover what Dispute Boards really are and why they play such a crucial role in the world of construction disputes.

Dispute Boards: A Form of ADR, but Unique

Dispute Boards (DBs) are part of the Alternative Dispute Resolution (ADR) family, just like mediation, conciliation, and arbitration. But there is a key difference. DBs take a proactive approach, aiming to prevent disputes from arising in the first place and only if that proves impossible, they have the power (given by the parties) to formally decide the dispute. In contrast, mediation, conciliation, and arbitration are more reactive — they step in only once a conflict has crystallised.

Let’s break it down:

Dispute Boards (DBs):

DBs are set up at the start of a project and are involved throughout its duration. They attend regular meetings, offer informal assistance and informal opinions, and address issues early on to avoid disputes. However, if dispute avoidance proves impossible and a disagreement escalates, the DB can step in to make a binding decision. This decision is binding unless and until it is overturned by an arbitration award or mutual agreement between the parties. In practice, this means the parties must implement and continue working as per the DB's decision, allowing the project to move forward without further costly delays. And very, very often, at the end of the project, these decisions will never be escalated to arbitration.

Mediation:

Mediation is used when a dispute already exists. A neutral third party (the mediator) helps both sides negotiate and find a mutually acceptable solution. The mediator doesn’t impose a decision but facilitates the conversation to keep things on track.

Conciliation:

Conciliation is similar to mediation but can be more directive. The conciliator plays a more active role in suggesting solutions, guiding the parties toward a settlement, while still leaving the final decision to them.

Arbitration:

Arbitration is the most formal of the ADR methods. Here, a third party (the arbitrator or arbitral tribunal) listens to both sides and makes a final and binding decision. The big advantage to a normal court case is that the arbitrator has knowledge about construction projects. However, over the years, arbitration has gained a reputation for being lengthy and costly — much like traditional litigation (yes, even ADR has its quirks!).

"So, what exactly is a Dispute Board, if it’s not like mediation or arbitration?"

To sum it up here is a “party version” of a possible elevator pitch:

“Think of a Dispute Board as part of the project team on large construction projects – I’m talking power plants, offshore platforms, airports, tunnels, motorways. We’re there from the start to prevent issues from becoming full-blown disputes. Unlike mediators or arbitrators, we’re proactive – we help solve problems before they escalate. And if necessary, we can make binding decisions to keep things moving, ensuring the project doesn’t face undue delays. In short, we’re the ones who keep the wheels turning, even when things get tricky."

So, NO, you really cannot compare a Dispute Board Member to a mediator or arbitrator. A DB is a master of both. Navigating tough negotiations or making decisive rulings when needed, requires key skills from both mediation and arbitration. So, it’s no surprise, then, that many Dispute Board Members are also experienced mediators and arbitrators, although their work is very much focused on the true objective: keeping projects moving forward and on track.