Construction law folder

Alternative Dispute Resolution in Construction

Alternative Dispute Resolution (or ‘ADR’ as it is usually referred to), can be defined as any method used to resolve a dispute other than litigation.  In the context of construction disputes, strictly speaking, this also includes the commonly used dispute resolution processes of adjudication and arbitration.

Whether acting for the claiming or defending party, at Michael Gerard Solicitors, we are always focused on the costs, time and the potential impact on our clients’ business when a dispute raises its unwanted head.  One of our first tasks when taking on a case therefore, is to ascertain and analyse the facts which are then applied to the matter, and then reconcile this to the client’s objective.  This in turn will go some way to being able to recommend what form of ADR will be most beneficial.  There are occasions of course, when the contract between the parties will prescribe the tiers of dispute resolution, meaning that in the absence of consent from the other side, a party’s hands are tied.

Expert representation in ADR proceedings

It can be perfectly feasible and acceptable for a party to a dispute to represent itself in all the ADR processes, and because the party is fully conversant on the background to the dispute, it can be tempting to do so. However, the appointment of a representative who is experienced in ADR will pay dividends.

The practitioners at Michael Gerard Solicitors have expertise in all types of ADR and can advise and guide you on every aspect of what is involved with each one and if necessary, represent you.

Forms of Alternative Dispute Resolution

In the construction industry, ADR refers to the following processes:

Mediation

Mediation can be an effective method in settling disputes early on. The process requires the agreement of both sides to participate and, aside from direct party negotiation, is the cheapest method of dispute resolution.

Mediation requires both parties to use an independent third-party mediator to identify issues and explore the options for resolution in an attempt to reach agreement.

Negotiation

This is simply representatives of the parties meeting and attempting to negotiate a settlement of the dispute.

Third-party opinion

An independent professional is appointed by both parties to submit a professional opinion and recommendation for settlement. This method is often used in relatively minor disputes which can be usually be resolved in a short timescale.

Expert determination

An independent expert is appointed to decide the outcome of the dispute. This expert’s conclusions are legally binding on all parties, unless decided otherwise before the process begins.

Conciliation

This is a process similar to mediation, where an independent expert is appointed to facilitate a solution to a dispute, as a neutral third party. The process differs from mediation in that as a result of the process, the conciliator will propose a non-binding settlement agreement for the parties to sign.

Dispute boards

There are various types of dispute boards under the ADR umbrella. Using a panel of mutually agreed impartial experts to resolve construction disputes can be a highly effective alternative to litigation and has been used with success on high profile, large scale projects like the Channel Tunnel, the Channel Tunnel Rail Link and the Docklands Light Railway.

The experts in ADR

The practitioners at Michael Gerard Solicitors have a proven track record in the use of ADR.

Get in touch with us today to find out more about how we can help.

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