Dispute Resolution and Avoidance
Disputes often arise in construction contracts, although one of the best methods of dispute avoidance is a concise and well prepared contract, sometimes matters of dispute can not easily be resolved. We are experienced and qualified in the construction process, this supplemented with our experience and qualifications in law makes us best placed to deal with a construction dispute. Sometimes this may simply take the form of an initial meeting advising on the relative strengths of clients case, however, if this is not enough to resolve a dispute, we are capable of taking a dispute through various legal processes of resolution to achieve the best possible result.
Mediation
Unlike Arbitration and Adjudication, Mediation is a more informal approach to dispute resolution. The process to be adopted can be agreed between the parties, it is likely to be non-binding, without any need to comply with rigid legal rules or worries about natural justice, the mediator can approach each side and express his opinions more openly so as to advise each side of what the likely outcome of the dispute will be. This process is likely to include time spent with each party individually letting them put their case. There may then be a meeting of both parties with the mediator, where the likely outcome of the dispute will be expressed. Following this the parties hopefully will then make an agreement and settle the dispute.
We can provide advice on the relative strength of a clients position or additionally party representation by attending mediation meetings and assisting with presentations to the mediator including advice on matters of disclosure and without prejudice submissions.
Although mediation sounds simple and straightforward, in reality it requires the diplomacy of both sides and commitment to submit to such a procedure on a voluntary basis. This can prove difficult in practice as disputes arise normally when one party strongly refuses to provide performance or payment under the contract and thus may refuse to entertain any form of ADR. Thus if the issue must be forced Adjudication or Arbitration will be more appropriate.
Adjudication
Adjudication is a compulsory method for resolving disputes in the construction industry using the Adjudication process as set out in the Housing Grants, Construction and Regeneration Act 1996 revised by Local Democracy, Economic Development and Construction Act 2009
as well as the rules contained in many of the standard forms of contract, sub-contract and consultant agreements. It is appropriate in cases involving cost recovery, delay and disruption. Parties to disputes in other sectors can elect to use adjudication in certain circumstances.
Adjudication is a mechanism where a dispute can be resolved in a predefined manner. Its benefit is primarily to ensure the smooth running of the contract under which the dispute arises and enables it to be quickly and efficiently resolved. The resolution of a dispute by adjudication is often defined in the original contract. The adjudication process begins when the dispute crystallises and a notice of adjudication is served. This can be done by either party. An adjudicator will then be appointed. The adjudicator will receive submissions and carry out his own investigations before ultimately reaching a binding decision on the matters put before him.
An adjudicator’s decision will be binding until a final determination is reached on the dispute either in court or by resolution through an alternative dispute resolution method and can be enforced by application to the Technology and Construction Court if necessary.
We can offer services throughout the Adjudication process from initial notice, preparation of referral documentation and responses to a referral.
We are also able to assist Barristers with formulating enforcement proceedings in the event that a party challenges or refuses to abide by an Adjudicators decision.
Arbitration
Although since the inception of the Adjudication process, increasingly less used, if a contract contains a valid arbitration agreement, the terms of that agreement may stipulate what the procedure is to appoint an arbitrator, if there are no terms the Arbitration Act 1996 gives a default procedure.
Once appointed, the arbitrator or arbitrators, will set the timetable and the detailed procedure for the arbitration including implementing any provisions of the arbitration agreement. This will then be followed to a conclusion when the arbitrator makes his award. We are able to provide an individual to represent a party in the process of conducting an arbitration.
The arbitrator’s award is binding on both parties and is enforceable at court under the summary judgement procedures. The award can raise complicated matters, it must be given in the prescribed form and it must be clear as what is to be enforced. The content may give rise to a challenge to set aside all or part of the award and /or make amendments. There may be difficult issues raised as to who pays the Arbitrator’s and party legal costs. We are able to analyse all awards, advise and represent any party on challenges to an arbitrators award.