1415 h24mpp lecture 12 - alternative dispute resolution

7/25/2019 1415 H24MPP Lecture 12 - Alternative Dispute Resolution

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Ioannes Tang

Senior University Teaching Fellow

Department of Civil Engineering

Faculty of Engineering

Room: B1C16, Telephone: 03-8924 8346

Email: [email protected]

Based on original notes by

W H Askew

H24MPP Lecture 12

Alternative Dispute Resolution


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Types of Dispute

Resolution Systems

Engineers decision

Negotiation

Mediation

Conciliation

Adjudication

Arbitration

Litigation

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Engineers Decision

In ICE Conditions of Contract

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Negotiation

Freestyle meetings

Can be formal or informal meetings

between the parties in dispute

May move to the structure of one of the

following systems involving a third party.

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Mediation

Neutral 3rd party that gets things moving

Aims to find a middle ground by negotiation.

The formal procedure involves separate,

private negotiation with each party leading

to accelerated settlement discussions.

The outcome can be legally enforceable in

contracts.

The mediator does not express a view

publicly.

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Conciliation

More formal procedure e.g. ICE Conciliation

Procedure in Clause 66(5)

Results are binding unless taken to

adjudication

Conciliator can (and may have to) express a

provisional view on the merits of the case

Decision to refer to adjudication is binding

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Adjudication I

Summary process in which parties to a

contract refer disputes to a neutral 3rdparty

for a decision

Must be available in Britain under HGCRA1996 for a decision by an independent

adjudicator, usually an engineer with legal

knowledge Outcome of adjudication is binding on the

parties

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Adjudication II

Adjudicator cannot be held liable for their

decision unless it can be proved they acted in

bad faith.

On the decision one party is compelled to makea payment to the other at least temporarily.

This act in itself can make the adjudication

decision the subject of another dispute if one

party feels dissatisfaction with it.

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NEC3

Dispute clauses W1.1 or W2.1

A dispute arising under this contract is

referred to and decided by the Adjudicator.

W2.1 adds: A party may refer a dispute to

the Adjudicator at any time. Time periods

are in days excluding Christmas Day, Good

Friday and bank holidays.

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Arbitration

Expensive.

Arbitration Act 1996 provides a statutory

framework for arbitration

Expert Arbitrator hears evidence in

private and makes decision.

Findings only made public if referred to

Appeal (on points of law only).

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Litigation

Action taken through law courts (judge

and jury).

In the High Court would probably involve

the Technology and Construction Court.

Findings made public.

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Partnering I

Key aim is to avoid disputes.

All key players involved from start with express

obligations to work together and individually in

a spirit of trust, fairness and mutualcooperation.

Use NEC 3 or

PPC2000

A Partnering Adviser supports the Partnering

Team and prepares the partnering charter and

advises on resolution of disputes

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Partnering II

Procedure invokes hierarchy aimed at avoiding

arbitration or litigation.

Financial disputes can be avoided by open book

accounting and refunding contractor with actualcosts with extra for profit and overheads

This requires a Price Framework and Agreed

Maximum Price (subject to allowable change or

risk occurrence).

May be linked to performance as defined

through KPIs.

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1415 h24mpp lecture 12 - alternative dispute resolution

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