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International Construction Law Review

CORRESPONDENTS’ REPORTS UNITED STATES OF AMERICA THE “INITIAL DECISION MAKER”: THE NEW INDEPENDENT DISPUTE RESOLVER IN AMERICAN PRIVATE BUILDING CONTRACTS

PHILIP L BRUNER

Director, JAMS Global Engineering & Construction Panel Chicago, Illinois, and Stillwater, Minnesota
In May 1885, the prominent American architect George C Mason of Newport, Rhode Island, described with obvious trepidation the perilous role of the architect in serving as the initial dispute resolver—the professional “peace-keeper”—between the owner and the contractor on American building projects:
“The architect is, by virtue of his position and the wording of all contracts drawn by him, an independent and judicial advisor, as well as a designer and supervisor of construction. It is a well known axiom of architectural ethics, that, ‘in his relations to clients and contractors, the architect should be an impartial arbitrator, and under no circumstances should he act as a special pleader for either party’. The owner of a building in course of erection is naturally anxious to secure results satisfactory to himself at the minimum cost, both of time and money. The contractor, with the same end in view, is further desirous of securing as large a margin of profit upon his work and the materials furnished as is consistent with honesty and his mechanical reputation. The trouble begins when, in the race for employment and in competition with his fellows, the would-be contractor seeks to obtain a contract below the current rates of materials and labor and without a fair and equitable margin for profit. This is supplemented in many cases by the action of the owner, who, asserting in the first instance his willingness to accept cheap work, gradually pushes the contractor for an increase both in quantity and quality. Each party is thus endeavoring to get ahead of the other and the result is disastrous to sound building. The above evils are of frequent occurrence, and are patent to all who are interested in the development and elevation of the building trades.”1
To address such endemic evils, the American Institute of Architects, founded in 1857, had begun in 1871 to develop the first national building contract in association with a group of contractors known as The National Association of Builders (the predecessor to the modern Associated General


The International Construction Law Review [2010

376

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