Methods of Dispute Resolution

29th March 2019

- Project within a project

Negotiation

- preferred; cheapest (most cost-effective)

- investment/value balance (i.e. worth it?)

- cost of winnings / cost of losings (Cost-Benefit Analysis)

- "Matter of Principle" not good enough reasons

- Even at Negotiation, you can bring lawyers to negotiate on your behalf

Varying Levels of "Binding"

- some disputes are contractual (mechanism decided in the contract)

- some are governed by statute

Courts are expensive and time-consuming

- expert witnesses, barristers, solicitors etc.

- procedurally driven, public, formal

Business reasons for keeping matters non-public

Improve or limit damage to relationships

Control over resolution diminishes down the list (on slide) (negotiation to arbitration)

Recording in writing any agreement, even "provisional" and "informal" matters

Silence in a dispute is a rejection

- remember the factors that indirectly influence the tribunal

- has to be silent for a reasonable time, i.e. in relation to the case

Difference between Mediation and Conciliation

- conciliator gives a view

- mediator doesn't give a view

- patience and other soft skills necessary for a mediator

- people in attendance need to be in authority to decide

Neutral Evaluation

- how Different to Mediation?

- a third party deciding whereas a mediator is helping the two parties to negotiate and reach a solution together (non-binding and only an opinion)

- maybe about the 'expertise'

Expert Determination

- only binding on the authority he/she is appointed for (extension of time vs compensation of extra costs e.g.)

- use his own expertise without revealing how (different to Adjudication)

Dispute Resolution Boards

- contract mechanism (i.e. consensual)

- large contracts, very expensive procedure

Adjudication

- Housing Grants, Construction & Regeneration Act 1996 (essential for us architects)

- invented for small disputes, but not the case anymore

- s108(2) prevents a limit to make a dispute

- no limitation on time or kind of dispute

- decision-making is time-driven; quick

- Adjudicator appointed by RIBA (?)

- based on evidence presented to him/her (evidence, not expertise), if he/she has expertise they can point the parties in the right direction

- temporally binding, can restart disputes

- all about helping cash-flow through the industry

- broken Natural Justice; like not given the other side chance to give evidence

- Limits of Disputes: jurisdiction of adjudication (EXAMPLES?)

- tends to benefit the party who wants to be paid

Arbitration

- private

- most common dispute resolution

- procedure has to be in writing

- biggest advantage to litigation is privacy

- S BC/Q2016; Litigation is default, not Arbitration

Litigation

- public

- court

- controls & restrictions

- parties lose control

- different courts and varying levels of cost and controls (represent yourself etc.)

Adjudication is standard, then either Arbitration or Litigation

Documentation

Architect's Letters, Instructions, etc. (Communication)

Letters (evidence)

Agendas/Minutes (evidence)

Instructions

Notes, records, internal memos

Notices & Certificates

Wording

Capitalised words = meaning in contract

Italicised (NEC 4) = further description

Some times email is not an acceptable form of communication in the contract/appointment

Letter to a prospective client

- clear and concise

- link to website

- don't mention fees

- stay in control of plan of action, next steps

Letter to contractor on behalf of client

- after Offer of Acceptance

- authority to bind client in contract

- draft it and make them send it

Contractor communication should be concise, direct and to the point

Meetings

- Examples

- Design

- Pre-start

- Progress meeting

- Purpose

- Outcomes

- Agenda

- Minutes (not Contractor's Documents)

- Record

- Issued - if unchallenged = approved

- Means of Communication

- File-sharing

- Protocol

- Health&Safety

- Insurance (evidence/proof)

Contracts

Sections - areas of work

- dates

- liquidation of damages

- start

- completion

CAI (Contract Admin Instruction)

- issue an instruction and a variation

- can't alter the terms of the contract, only act within them

- would need a deed of variation to the contract

- not necessary to draft a new contract

Reduction of Scope of Works

Adjust the Specification

Issue a Variation

Domestic Sub-contractor is taken responsibility of by the Main Contractor

Don't attach the quotation to an Instruction - add Terms & Conditions

Carry the risk by issuing an instruction and variation to the spec - think ahead

task 6 - Recorded in writing, not just as a variation

Notice (-> received)

Certificates (issued ->)

- never issue a certificate unless you are contractually obliged to

Letter of Intent

JCT SBC/Q Payment - Background

Payment regime in SBC

5 days after DUe Date can't change

7 days before final date can change

Contract conditions of paying on an invoice or a certificate

No negative payments i.e. payments can't go both ways in SBC, but can do in NEC

"Days" means "Calendar Days"

Omit previous work in Certificate

My job to tell the QS if the work is in accordance with the contract

Who owns material? Not fixed and clear idea until it is fixed to the ground

Retention of Title Clauses, if you don't own materials you can't pass them on

The only one who can issue a pay-less notice is the Employer (in general) or Contractor in the Final Certificate