Construction Litigation: Can We Do it Better?

Abstract

In recent years, alternative dispute resolution, most notably mediation, has become a popular way of keeping disputing parties out of the Australian courts. Despite these advances, numerous disputes still end up in litigation. This is particularly true when it comes to complex construction cases. While Australia's focus on mediation is admirable, it has come at the expense of a broader debate regarding litigation reform. In the United Kingdom, where mediation has not been embraced with the same enthusiasm, there have been many innovative reforms to civil procedure rules. In particulal; the Pre-Action Protocol for Construction and Engineering disputes is proving to be successful in reducing the amount of litigation and improving the conduct of cases that do proceed to trial. This article considers whether similar civil procedure reforms are warranted in Australia.

Keywords: construction, litigation, civil procedure, pre-action protocols

JEL Classification: K41, K39