Other processes: adjudication, expert determination, dispute boards and ODR
Other processes: adjudication, expert determination, dispute boards and ODR
This domain tests the processes outside the mediation-arbitration core. The exam expects you to distinguish interim binding adjudication from final binding arbitration, contractual expert determination from arbitration, standing and ad hoc dispute boards, and online dispute resolution (ODR).
Core features
- Adjudication: a quick decision by an adjudicator, typically in construction; often 'pay now, argue later'. It is binding on an interim basis and enforceable, but usually not final; the dispute may go to arbitration or litigation.
- Expert determination: an expert decides a defined technical, valuation or accounting issue. It binds if the contract says so. It is not arbitration and may not require a full adversarial hearing.
- Dispute boards: a standing or ad hoc panel that issues recommendations or decisions during a project, commonly under FIDIC contracts; decisions are usually binding pending arbitration.
- ODR: online negotiation, mediation, arbitration or platform-based dispute resolution; it may be synchronous or asynchronous. Due process, identity, data protection and enforceability still matter.
Worked example
A contractor is owed an interim payment. The contract provides for adjudication within 28 days and then arbitration. The adjudicator decides the employer must pay $500,000. The employer does not pay, arguing the work is defective. The contractor can enforce the adjudicator's decision summarily; the employer must still pay and then pursue the merits in arbitration. The adjudicator's decision is not a final award, but it is binding until revised. If the contract instead said a named expert would 'finally determine' the valuation, that would be expert determination, not adjudication or arbitration.
Traps
- Treating adjudication as final.
- Treating expert determination as arbitration; it lacks the Arbitration Act framework and award status.
- Assuming a dispute board's decision is unenforceable.
- Treating ODR as just a video hearing; it includes online case management and automated processes.
- Missing that these processes depend on precise contract wording.