By Gary L. Cole AIA, Esq.
Interesting article HERE, and I agree, BIM has unique possibilities in arbitration and mediation as an evidentiary tracking tool, but in different ways.
In construction arbitration, comparing a contractual scope of work — including one that evolved during a project — with the work completed might provide the parties and the arbitrator with a more objective and empirical measuring stick for comparing the parties’ intent with a project’s completion.
In construction mediation, especially in “evaluative” mediation, the same holds, but the BIM findings also provide the mediator with more tools to bring the dispute to settlement, mainly when those findings are used with the mediator’s summary of the strengths and weaknesses of each parties’ case, as presented to each party in confidential ex parte discussions.
However, in both arbitration and mediation, using a tool like BIM most effectively still requires that counsel for the parties, the arbitrator, and the mediator have the technical expertise to understand the kind of evidence BIM provides – and the ability to give that evidence the weight it does or does not deserve, depending on the dispute.