There are two concepts of process in dispute resolution, the first is Court proceedings the second is ADR, (Alternative Dispute Resolution), which is "anything but go to Court".
Arbicon are a leading provider of Alternative Dispute Resolution services to the Construction Industry using very powerful fast alternatives to long winded and uneconomical Court proceedings in dispute resolution.
If you use the Court you will need a solicitor or barrister to attend Court proceedings unless you represent yourself. Court fees and a legal team are very expensive, the Court process always takes a long time and much of the legal cost you will incur is often not fully recoverable even if you win. It is essential that the spectre of legal costs, win or lose is appreciated before you embark on Court proceedings.
In order to take your case through Court Proceedings you must comply with the "Pre-action Protocol for Construction and Engineering Disputes" (PAP). The PAP prepares your case and ensures that you make a serious attempt to resolve the dispute before entering the courtroom including pushing you into ADR.
After some time engaging in the Court process and much expense later, whether or not you have used the PAP you will be "encouraged" to consider ADR. Normally Mediation or Adjudication. The taxpayer and modern Court system does not want you there, so commercially you should always consider ADR before you venture down the Court route and you should always ensure you have an effective ADR clause in the contract to allow this.
In the case of Adjudication, since 1st May 1998, there has been a Statutory right to Adjudicate a construction dispute at any time so a contract clause is not necessary, unless the contract is a householder one, which are excluded from the Statutory rights. The Adjudication infrastructure in place now is a "well-oiled machine", both in terms of the quality of Adjudicators and case law behind it. It is a very fast and effective ADR process to ending construction disputes and much cheaper than Court proceedings. It is a specialist area of law that many solicitors do not have any experience of thus it is essential that any case representation is properly advocated by experienced construction professionals such as Arbicon. The effective Adjudicators are normally Chartered Quantity Surveyors and the advocates the same as they will have worked on a site and experts in the measurement and valuation of construction work and time.
Adjudication can be done at any time, so if you are in Court it does not matter, it runs separately. It takes circa 28 days to complete, the right to hold the money is decided with a legally binding decision and if you are in Court proceedings, the likelihood is that these will end by consent. Arbicon have started adjudication in numerous cases without warning where entrenched Court proceedings existed and after 28 days of adjudication the case has been closed by consent following the Adjudicator's decision.
Arbicon have been involved in Adjudication since it started in 1998 and can act as both a party Advocate or appoint an Arbicon Adjudicator.
Mediation is another ADR process, which is gentler than Adjudication as it does not commit or risk a party to any concession in the dispute. The object is to air the dispute to see if a compromise can be reached and agreed using a mediator. Mediation is the main ADR process the Court and lawyers encourage, it can only successfully be executed if there is a willing to compromise, if you want to test all your rights, adjudication is more appropriate. If you are not offered adjudication you will need to consult with Arbicon.
Arbicon have a qualified RICS commercial mediator and can also act as Advocates in mediation.
As stated above ADR is any dispute resolution process that does not require the Court, this can be as simple as negotiation or can involve an Expert Report or Expert Determination where opinion settles the matter.
Arbicon provide the full spectrum of Construction ADR services which can be explored further by clicking the boxes to the right.
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