This article was originally published on ReNew Canada.

Earlier in our careers, one of the authors spent more than a decade in construction, working on heavy industrial, oil and gas, and infrastructure projects. At that time, aside from the occasional mediation clause, it was uncommon for contracts to include dispute resolution mechanisms designed to address issues before they escalated into litigation.

On one major project, a significant dispute arose roughly three months into a two-year job and quickly became a major distraction for the remainder of the work. Nearly every interaction was contentious. Every word written or read in an email was scrutinized, and information the company shared with the owner was carefully vetted to avoid weakening its position in the dispute.

The project suffered as the parties—at loggerheads over who was responsible for the issues, their value, and their impact—interacted as though the other were unquestionably at fault. In hindsight, it’s unclear whether the situation would have developed differently had a neutral party been engaged, but a neutral party’s involvement would almost certainly have improved the parties’ relationship and resolved several significant elements of the dispute. An experienced technical expert, complemented by a legal practitioner, could have brought the parties to the table, examined the issues with care, and offered a grounded view on responsibility, delay, productivity impacts, and valuation, sparing everyone involved considerable time and expense.

Our experience—an all-too-common one in the industry—raises the question: When disagreements arise on significant construction and infrastructure projects, should parties continue to rely on dispute resolution tools that resolve issues only after the fact, or should they make greater use of real-time tools, like standing neutrals, to help prevent contentious matters from escalating into litigation or arbitration?

While the concept of using standing neutrals has been considered in some Canadian construction contracts, often in the form of dispute review boards, they have been used sparingly and usually only on large infrastructure projects. It is the view of the authors that the industry, and all parties involved, would benefit greatly from a broader inclusion of these types of dispute resolution mechanisms during construction, including consideration of solutions that differ from traditional dispute review boards.

The evolution toward standing neutrals

Over the past few decades, alternative dispute resolution mechanisms have begun to gain traction in major construction and infrastructure projects, such as public works and longer-duration projects, where the costs of poor project outcomes outweigh the costs associated with these mechanisms.

For many construction disputes, litigation became too expensive and too slow. Arbitration was intended, in part, to provide a more efficient alternative, but it can also be expensive and time-consuming. In recent years, prompt payment and adjudication regimes were introduced by several jurisdictions under lien legislation to promote faster interim resolution and keep money flowing and work progressing. These regimes, however, are sometimes honored in form rather than substance, as parties may fail to engage with them as their drafters intended.

Most typical dispute resolution mechanisms, such as mediation, arbitration, and litigation, can take months and often years to complete. By the time a hearing through one of those mechanisms takes place, the parties may have spent months defending positions instead of identifying a solution to the problem at hand.

Construction disputes need to be better managed before they negatively impact project outcomes. A contractor nearing the end of a job may have a contractual right to put down tools because payment hasn’t come through, or to refuse to provide the required turnover documentation for the project. Often, it is more practical to finish the work and preserve the dispute over value rather than create a broader dispute over completion, delay, and responsibility.

Many construction disputes could be resolved faster—improving project outcomes and reducing the time and money they waste—if a dispute resolution mechanism were invoked in real time and completed within days or weeks. That’s where standing project neutrals come in.

They’re not designed to replace mediation, arbitration, litigation, or adjudication. They instead operate at an earlier stage, bringing independent judgment to disputes before positions fortify, claims become institutionalized, and the dispute resolution process itself ends up costing more than the issue at stake. Even mediation typically still requires each side to retain its own advocate to argue its position to the mediator, which can be costly and slow-moving.

The role of standing neutrals

Standing neutrals are built into a project’s structure from the outset, either as one person or as a small body with legal, technical, or mixed expertise. They serve as an “on-call” dispute resolution tool, available while a project is active rather than only after a dispute escalates to the point of disruption. They are involved in the job even when there is no active dispute. They stay familiar with project correspondence, drawings, monthly reports, schedule updates, change orders, and the issues developing on the job site.

It’s worth distinguishing among the varied forms of standing neutrals. A dispute review board typically issues nonbinding recommendations parties may adopt or set aside. A dispute adjudication board typically issues interim binding decisions that govern the parties’ conduct until any subsequent challenge. A standing neutral or expert may sit alone and act in either capacity, depending on what a project’s contract specifies. Each model carries different consequences for finality and risk allocation, and selecting among them is itself a meaningful contractual choice.

Standing neutrals often combine legal and technical expertise, as construction disputes are often technical matters that escalate into legal claims. Determining the genesis of a dispute and who is responsible for it requires construction experience, accepted methodologies, and technical judgment. Without that input, project teams may advance positions not grounded in the kind of analysis an independent expert would apply.

Providing standing neutrals capable of addressing both the legal and technical complexities gives the parties the appropriate expertise based on whether the dispute is predominantly legal or technical. Legal expertise can help the parties navigate their contracts’ structure, rights, and remedies. Technical expertise can provide a practical assessment of delays, productivity, valuation, and other issues affecting the project. Used this way, expert determination resolves discrete technical issues efficiently, without the cost and procedural burden of formal adjudication.

A standing neutral resembles officials in a hockey game or other athletic competition. Teams don’t play games to completion only to bring in a referee at the final horn to decide where penalties should have been called. Officials monitor the game as it happens, ensuring it proceeds smoothly and staying out of the way unless needed. A good referee stays as far out of the game as possible; they’re present, attentive, and engaged only when the game requires their intervention.

The benefits of early neutral involvement

The same logic applies to a standing neutral’s role in major construction and infrastructure projects. When a dispute arises, the neutral need not spend months poring over project documents and records before providing assistance. Beyond their legal or technical authority, standing neutrals bring value to a construction project through their intimate knowledge of the project itself.

By the time a dispute has made its way to mediation, arbitration, or litigation, the people charged with resolving it are often piecing things together from documents—emails, meeting minutes, site reports, witness statements, and narratives—some of which have been prepared well after the fact, each one shaped by the case the party preparing it needs to make. A better case is presented by all parties when people involved in real-time decision-making can present their position, rather than having to litigate years later based on a noncontextual evaluation of the project correspondence.

The neutral who has been involved in the project from day one knows the contracts in play, the project’s history, the parties involved, the history between them, how stakeholders interact, and the early signs of difficulty as they appear. In the absence of a standing neutral, parties can take obtuse positions—for example, assigning blame for shipping delays—because their contracts’ dispute resolution process likely rewards such behavior.

A neutral with knowledge of the project, on the other hand, can identify a no-fault delay as such and prevent it from metastasizing into a contested claim. And their ongoing, proactive role allows them to take prompt action before the parties become so entrenched in their positions that resolving a dispute becomes exponentially more difficult.

The case for broader adoption

The neutral concept itself is not new. Dispute review boards have been used in major international infrastructure projects for decades, including FIDIC-form contracts and World Bank-funded projects, with success on tunnels, dams, and large transportation projects. However, the standing neutral concept is relatively uncommon in Canadian construction contracts, aside from limited examples such as major infrastructure projects in which a dispute review board is appointed at the outset. The construction industry would be well-served to adopt these tools more broadly for use on all types of projects, not just large infrastructure. For owners who have seen major projects fail, the need for the dispute resolution approach that standing neutrals offer is becoming harder to ignore.

Canadian public-sector owners and repeat purchasers of complex infrastructure are likely to benefit the most from standing neutrals. They can help prevent the delays, costs, strained relationships, and public scrutiny that unresolved disputes introduce. The monthly cost of retaining a neutral over the life of a project is modest when measured against a single arbitration, and trivial when measured against poor project outcomes. Owners can adopt provisions to incorporate standing neutrals into their construction contracts, whether written directly into their bespoke agreements or added to standard-form contracts through supplementary conditions.

There remains a place for mediation, arbitration, litigation, and adjudication. But standing neutrals provide an often-effective means of managing conflict during major construction and infrastructure projects so that a smaller proportion of disputes needs to reach those forums.

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About the authors 

Logan Patience is a director at HKA and a project management professional with 20 years of experience. He has been appointed as a delay and quantum expert and has also assisted the named expert on several occasions. Logan specializes in delay, disruption, and quantum disputes, having prepared analyses on schedule delays and extensions of time, change order and damages calculations, disruption quantification, and standard of care issues related to project management.

William Katz, a partner at Carbert Waite LLP, maintains a commercial litigation and dispute resolution practice involving construction disputes, shareholder litigation, corporate and investment fraud, and employment law. He has valuable experience as an arbitrator, mediator, and negotiator, and while he enjoys appearing in court when necessary, his priority is always finding a pragmatic and sensible solution for his clients’ disputes.

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This article presents views, thoughts, or opinions that are provided for general information purposes only. It does not represent the views of, or constitute advice of any form (legal, professional, or otherwise), from HKA or any of its affiliates. While HKA takes reasonable care to ensure the accuracy of its contents at the time of publication, the article does not deal with all aspects of the referenced subject matter and may not be relied upon as a substitute for professional judgment or independent analysis. Accordingly, neither HKA nor the author accepts liability for any use of, or reliance on, the information presented in the article. This article is protected by copyright © 2026 HKA Global, LLC/© 2026 HKA Global Ltd. All rights reserved.

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