D is for Dispute Resolution…

Posted on Posted in A-Z of Construction Law

…this was a fairly obvious one. Continuing our personal alphabet of things we’ve learned about construction and law, if there’s one thing we’ve learned in the past 20 years, it’s that there will always be disputes to resolve. Here are a few of the techniques we’ve come across:

Expert Determination

An expert in a particular field will be appointed to determine what went wrong on a project and hopefully settle the dispute.

Mediation

An independent third party is appointed to help people reach a mutually agreeable solution to a dispute.

Conciliation

Similar to mediation. But the third party will usually provide a proposed settlement, rather than the parties reaching the resolution.

Statutory Adjudication

A technique specially designed for resolution of construction disputes. In theory it lasts 28 days. It’s enshrined in law, so can’t be written out of contracts, and aims to keep cash flowing. You can also have non-statutory or contractual adjudication, which doesn’t use a system written into law and tends to be contractual. An adjudicator is appointed to determine the outcome of the dispute. It started in England, but has been emulated in other parts of the world including Australia, Singapore and Ireland.

Arbitration

Used to be a common way to resolve disputes, but since adjudication, has become less prevalent. Still common on major international projects. Arbitration often involves one, or a number of arbitrators determining the outcome of a dispute. Because of something call ‘The New York Convention’, you can enforce an arbitral decision (in theory). This method is private, so (again, in theory) people don’t find out the outcome in public, unlike…

Litigation

Often seen as a last resort, this is where disputes end in court. In England and Wales they might end up at the Technology and Construction Court. Or if you’re really unlucky, the Supreme Court. A judge (or judges) will determine the outcome of the dispute.

Those are just a few (very simplistic) explanations of some of the many ways of resolving a dispute. They’re probably the main methods you might happen upon when resolving a dispute.