Dispute Review Boards and Other Instruments in the Owner's Dispute Avoidance Toolkit

• Pages: 9-20
• Date: 01 July 2025
• Published date: 01 July 2025
• Author: Bill Franczek,Deborah Mastin,Marissa Downs
• Subject Matter: Derecho Público y Administrativo

Published in The Construction Lawyer Volume 44, Number 3, ©2025 by the American Bar Association. Reproduced with

permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any

means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Forum on Construction Law The Construction Lawyer Summer 2025

9

Dispute Review Boards and Other Instruments in the

Owner’s Dispute Avoidance Toolkit

By Bill Franczek, Deborah Mastin, and Marissa Downs

Bill Franczek is principal in the Norfolk, Virginia, office of Woods Rogers Vandeventer Black PLC.

Deborah Mastin practices in the Law Office of Deborah Mastin, PLLC, in Aventura, Florida. Marissa

Downs is a partner at Laurie & Brennan, LLP, in Chicago, Illinois.

Based on the presentation Bill Franczek, Deborah Mastin, and Marissa Downs made at the Construction

Forum’s 2025 Mid-Winter Program from January 16–17, 2025, this article was revised for publication in

The Construction Lawyer.

The owner—perhaps more than any other project participant—should be highly motivated to avoid

disputes and the added costs and project slowdowns that accompany them. Traditionally, the owner

attempted to overcome potential dispute-related delays by incorporating contractual provisions requiring

the contractor to continue performing even after disputes arise. But such provisions do not effectively

mitigate all the negative project impacts that conflict can bring. And to require continued performance in

the face of unresolved issues is not always the most productive means of administering a project.

Luckily for project owners, there is a better way. With the adoption of better alternative dispute resolution

(ADR) methods, project owners can more proactively manage (and hopefully resolve) disputes in real time

during the course of their projects. Although not a “new” technique, Dispute Review Boards (DRBs)—also

called Dispute Avoidance Boards, Dispute Review Panels, Dispute Prevention and Management Boards,

or just Dispute Boards—can offer one solution to mitigate the impact conflict can have on construction

projects. This article will explore DRBs, past DRB examples where they have (and have not) worked, what

owners need to do to effectively implement them, and how best to leverage them for success.

An Overview of DRBs

Disputes Under the “Traditional” Approach

Disputes frequently arise in construction projects. The most common sources of disputes stem from (1)

contract ambiguities or omissions, (2) unexpected events and differing site conditions, (3) defects in design

or fabrication, (4) delays, and (5) nonpayment.

Having a clearly defined dispute resolution provision set forth in the contract documents can provide a

pathway to overcome these disputes. The goal in establishing any dispute resolution process is, chiefly,

to “resolve conflicts efficiently, maintain professional relationships, and keep the project on track.”1 But

the “traditional” approach to contractual dispute resolution procedures does not always allow project

participants to realize these ambitious aims.

Under the “traditional” approach to dispute resolution on construction projects, the project team will first

attempt to resolve the dispute on its own. If this is unsuccessful, the project team submits the decision to

the architect, who, historically, was deemed to have the “broadest overall vision of the project” and thus

was the “most logical” arbiter of claims.2