This is defined in the A101 document part 6.2. That language sets the method of Binding Dispute Resolution. So, if mediation is not pursued by both parties, then the matter can be settled as defined by the terms of 6.2 following the procedures of Section 15.3.3 of A201, which states that 60 days after request for mediation by one party, they may pursue binding dispute resolution. As notification is also required to be sent to the mediator, and then to the arbitrator (or courts if arbitration is not selected) for binding dispute resolution, it is reasonable to conclude that the party failing to agree to mediation and/or binding dispute resolution is in violation of the contract, (A101 part 6.2. and the General Conditions A201 parts 15.1.2, 15.3.1 and 15.4.1) as they have agreed by contract to settle disputes per those terms. In addition, neither party waives any rights they might otherwise be entitled, per Section 13.3 of the A201, due to failure of the other party to act.
It is not the intent of the contract to limit one parties' rights due to the action, or inaction of the other party.
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Jeffery Reynolds AIA
HOK
Washington DC
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Original Message:
Sent: 07-27-2021 10:41 AM
From: Timothy Aho
Subject: Ability of One Party to Make Architect's Initial Decision Binding on the Other with No Other Recourse ( Art. 15.2.6.1 of A201 2017 Gen. Cond.)
Hopefully the community can help my understanding of this... I've never been completely clear on how the dispute resolution mechanism in the General Conditions operates because some of the wording is non-intuitive. Specifically, I'm hoping for clarification of the underlined part of Article 15.2.6.1 (see below) which reads:
"§ 15.2.6.1 Either party may, within 30 days from the date of receipt of an initial decision, demand in writing that the other party file for mediation. If such a demand is made and the party receiving the demand fails to file for mediation within 30 days after receipt thereof, then both parties waive their rights to mediate or pursue binding dispute resolution proceedings with respect to the initial decision." (similar language appears in 15.3.3 and was also in the 2007 version of A201)
If I'm reading this correctly, if the Initial Decision-Maker's decision is in favor of Party A, but Party B disagrees with that initial decision, then Party B can demand mediation. That's clear so far, but here comes the troublesome part: If Party A (which likes the initial decision) decides to wait it out for 30 days and does not file for mediation, then the effect is that both parties' rights for further dispute resolution are waived and the initial decision becomes binding. That leaves Party B no recourse (mediation or subsequent arbitration/litigation). Is that how you all are reading this? Anyone have experience with it?
I realize the alternate methods of dispute resolution such as mediation or binding arbitration depend on both parties being willing to participate, but the provision and example above seems to also remove from Party B the right to sue/litigate and compel Party A to participate in any other means of resolving the dispute. Is that so?
Thanks in advance for your thoughts!
-Tim
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Timothy Aho AIA
President/CEO
Aho Architects, LLC
Hoover AL
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