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During the 1980s, many people thought that "it might be possible for the construction industry to litigate itself out of existence." This is no longer the case due to the increasing popularity of partnering, says James Keil. Partnering is based on the princi
ple of hybrids, where elements of several forms of ADR are combined in an informal process to try and eliminate problems in the construction industry before they have a chance to become entrenched disputes.
There are many forms of alternative dispute resolution that have developed over the years. For centuries, citizen tribunals have been used in various civilizations as parts of justice systems. These citizen tribunals rendered decisions in much the same way as arbitrators, judges, and juries do in the American justice system today.
Facilitation and mediation have come to be used as enhancements to communication and negotiation as opposed to arbitrary settlements by third parties, providing settlement options. Today, many of these processes are being combined into "hybrids" to be applied to specific situations in order to achieve specific goals.
RegNeg (negotiated rulemaking), for example, is a combination of facilitation, mediation, and negotiation that is being used in the public sector in the development of public policy. Hybrids, such as RegNeg, provide flexibility that helps to adjust to the ever-changing needs of society and its elements.
For the purpose of understanding hybrids within the general confines of ADR, let's look first at what has come to be known as "partnering." Partnering combines elements of several forms of ADR in an informal process. It first originated in the construction industry during the 1980s as a way of reducing the costs of lengthy and complex litigation and arbitration, by eliminating or minimizing issues that otherwise would become legal disputes.
Many people who worked in the construction industry at that time were beginning to think that it might be possible for the construction industry to litigate itself out of existence. Long, protracted hearings, lengthy discovery proceedings, and entrenched positions were the norm rather than the exception on large, complex projects. In the end, settlements of such litigated cases were usually left to be worked out by people who may not even have been actively involved in the events leading to...