Glaholt ADR Inc. was formed in 2019 to carry on Duncan Glaholt’s mediation, arbitration, and dispute board practice. With mediation and arbitration coordinator, Teresa De Sousa, Glaholt ADR Inc. provides efficient, independent ADR services to the domestic and international construction industries.
As Canada continues to address its infrastructure deficit and housing shortfall, long term exchanges of goods and services will generate disputes. These disputes are inevitable, but manageable. They will test an organization’s leadership, vision, and values. Handled quickly, correctly, and efficiently, they contribute positively to the growth and maturation of an organization by creating institutional knowledge, decision making capacity, and depth of experienced management. Mismanaged or ignored, however, these same disputes can lead to years of wasteful, divisive, dysfunctional interaction. This kind of dysfunctional behavior need not become normalized. The tools are at hand to prevent that from happening.
The construction industry is rich in modes of conflict resolution. They need not be treated as autonomous and competitive. Attention needs to be paid to the way in which these modes complete, oppose, and redefine each other against a constantly changing backdrop of participants, disputants, and contractual approaches. Some of these approaches are listed below:
Mediation: In addition to transactional dispute mediation, Glaholt ADR Inc. encourages relational, mid-project mediation. The idea of mid-project mediation is to create “relational capital” that can then be re-invested back later in a project to avoid or mitigate end-of-project commercial disputes.
Arbitration: As a certified specialist in construction law, author of leading texts on construction law and ADR, and experienced construction litigator, Duncan Glaholt is often appointed as arbitrator, or chair of domestic and international arbitral tribunals.
Dispute boards: Dispute board expertise and methodology has been of significant benefit to the industry, nationally and internationally. Duncan Glaholt has participated actively in this development. He has chaired several boards through several difficult, occasionally contentious, but ultimately successful projects. Dispute boards offer the industry a way of creating reliable, repeat, high-value interactions in “real time”, during an ongoing project. These repeat, high-value interactions create more cooperative, and hence more profitable and successful projects.
Court assistance: Modes of dispute resolution in the construction industry need not exist in conflict with themselves or work outside of the public system of justice. There are procedural opportunities within the judicial system for independent, expert assistance, including references in construction lien matters, and assistance as a Monitor, or Claims Officer.
Co-med/arb: There is much controversy surrounding “med/arb”, a process in which a mediator changes hats and decides issues for the same parties as arbitrator. Many of these criticisms are well founded. The benefits of “med/arb” can be obtained without the accompanying detriments through a process called “co-med/arb” in which an arbitrator and mediator work together, with the consent of the parties, to ensure a procedurally a fair, timely, binding, and efficient outcome.
Collaborative contracting: Glaholt ADR Inc. has participated in collaborative forms of contracting such as IPD and NEC3 and can assist in helping parties manage the culture shift to these more relational forms of contracting.
Project close-out: as projects approach performance testing and turnover, the risk profile of the project naturally changes. Glaholt ADR Inc. provides assistance in managing this transition in a constructive and collaborative fashion.
Duncan Glaholt C. Arb is the recipient of the Ontario Bar Association Award of Excellence in Construction Law and the Toronto Construction Association lifetime achievement award. He is the author, co-author, and editor of several standard reference books on construction law and alternative dispute resolution, including Halsbury's Laws of Canada Construction and Alternative Dispute Resolution (LexisNexis, 2021 and 2022) and The Law of ADR in Canada: An Introductory Guide, 3rd edition (LexisNexis, 2022). Mr. Glaholt has also authored Construction Trusts (1998, Carswell), Conduct of a Lien Action (Carswell), and the Annotated Ontario Construction Act (Carswell). Mr. Glaholt is a co-author of Bristow, Glaholt, Reynolds and Wise on Construction, Builders' and Mechanics' Liens in Canada, (8th edition, Carswell, 2020). Mr. Glaholt is an Adjunct Professor at the Faculty of Law, University of Toronto.
