Contract Disputes inevitably occur either through human error or deceitful greed and the UK construction and civil engineering industries have the highest incidence of dispute problems.
The heterogeneous nature of construction coupled with complex or non-existent contract obligations provides the breeding ground for disputes and misunderstandings.
"Oh, what a tangled web we weave. When first we practice to deceive".
Marmion - Walter Scott
Arbicon are one of the UK's leading dispute resolution providers for the construction and engineering industries also makes us experts at dispute prevention and risk management.
Alternative Dispute Resolution (ADR) is Arbicon's speciality, ADR is basically all and any means to end a dispute without the need for Court Proceedings. Arbicon are also able to assist with Court Proceedings in the Small Claims Court or Technology and Construction Court (TCC) proceedings. Arbicon are experienced in assisting in enforcement proceedings, can recommend the best barristers and have been involved in some notable cases in the TCC relating to adjudication law.
Arbicon Dispute Resolution Services
Arbicon's dispute resolution services are delivered in two ways, as the Tribunal, "the man in the middle" or as Party Representative.
Case Tribunal
Arbicon's consultants can be appointed by both parties to act as an Arbitrator, Adjudicator, Mediator or as an Expert in an Expert Determination.
Case Representation
Arbicon have successfully represented Clients in numerous disputes including adjudications dating back to when the Construction Act came into force in 1998. As experts in construction contract practice and procedure, construction law, adjudication case law and having dealt with almost every type of dispute, Arbicon are the best choice for case representation in construction disputes.
Arbicon will prosecute and defend claims at a moment's notice. To appoint Arbicon as your case representative simply us to discuss your requirements.
Building Employers - Rescued Projects
Where a contract is in progress or just completed, sometimes due to the failure of another Contract Administrator, Consultant or Contractor, Arbicon are the specialists in taking control and sorting out the mess as a speciality. There may be professional negligence, insolvency or termination involved. Whatever the situation, Arbicon will resolve any problem, take over and complete the contract administration as necessary.
On completion, Arbicon will then prepare and prosecute any claims that can be made against the parties involved and obtain damages for the injured Client ideally using an ADR process such as adjudication.
The above relates to Building Employers, Arbicon provide a full contract management package for Contractors and Sub-contractors.
Dispute Resolution Processes
Arbicon deliver the Dispute Services through Dispute Resolution Processes acting either as the tribunal or party representative including:
- Adjudication
- Arbitration
- Mediation
- Negotiation
- Expert Reporting / Determination Services
- Court Assistance (County Courts, High Courts & TCC).
Adjudication
Adjudication is the most popular fast track ADR process in the UK Construction Industry. Your rights are determined in a matter of days irrespective of the size of dispute. The process is now a well oiled machine, tried, tested and approved legally and commercially since its inception in 1998. The commercial advantage is speed and lower cost compared to Court Proceedings particularly if lawyers are excluded. Costs are not generally recoverable, although there are instances where they can be recovered. The Adjudicator's decision is legally binding and enforceable thus consequently, it is now the most powerful, universally accepted ADR dispute resolution process in the UK Construction Industry. The process is unless otherwise expressly agreed an interim one by default, thus final determination can follow in Court or Arbitration. It rarely does, 99% of cases end with the Adjudicator's decision.
Arbitration
Arbitration can be used where a party or parties seek a final determination of a dispute. Unlike Court proceedings, which are similar, the dispute is held privately and confidentially as opposed to open Court. The arbitrator is paid by the parties as opposed to a Judge who is free. Legal Costs can be recovered, the Arbitrator decides who pays the costs of his fees and the legal costs of the action depending on any cost agreement or law in respect of "costs following the event".
Arbitration practice and procedure is governed by statute in England, Wales and Northern Ireland under the Arbitration Act 1996. The Act provides mandatory and optional rights to the parties, thus guidance in setting up an arbitration agreement and the execution of arbitration proceedings needs the care and help that Arbicon can provide.
Mediation
Mediation is a well-established process used to resolve disagreements where an impartial third party (the mediator) helps parties to the dispute find a mutually acceptable resolution.
Unlike Adjudication and Arbitration there is no determination of the dispute by a third party. The process is totally without prejudice and confidential. Mediation explores the psychology of the parties in dispute, allowing in a friendly environment the parties to step back to consider their positions to look at the behaviour and reality of what has happened and what will happen if the dispute continues. The process can also recover business relations. It does need both parties to co-operate if a settlement, which is the objective is to be reached at the end of the day.
Negotiation
The first step in any dispute case taken on by Arbicon as party representatives will be an attempt to negotiate a settlement with the other party by negotiation. Arbicon's approach to negotiate first has two main advantages.
Firstly, if Arbicon resolves the dispute by negotiation it will be the most effective, quick and economic end to the problem. Job done.
Secondly, the submissions and any responses obtained in prosecuting and putting your case, will provide a crystallised dispute by establishing your "ducks set up in a row" and contemporaneous evidence. We would also hope to provoke the other side to respond encouraging them to weave their "tangled web". Any attempt to deceive will be found out and perpetrator will lose. Thus if negotiation fails the case will be set up for taking the dispute to the next level of formality such as adjudication, arbitration or litigation.
Expert Services
Arbicon provide expert Chartered Surveying services for construction related disputes in a number of forms so as to provide a definition and/or opinion on the facts involved in a dispute.
The dispute can be determined by agreement; an Advisory Report can be given so as to be used as evidence that is not necessarily independent; a formal CPR 35 Report can be independently produced either for one party or jointly for any tribunal up to the highest Court in the Land.
Arbicon's expert report can provide the definition required to resolve the dispute or assist a tribunal or Court in making their decisions with the detailed contemporaneous analysis provided.
Court Assistance. (County Court, High Court & TCC)
If Court is your only option, Arbicon can assist you and support you in pursuit of resolution. If you are in the Small Claims Court or the TCC, Arbicon can assist with your case management if you do not have a solicitor and depending on your contract terms for entitlement to damages for late payment you may be able to claim the costs. Arbicon can also provide Expert input to the facts of your case without representing you. Arbicon can help you deal with Pre-Action Protocol letters, assist with submissions and we know the best Construction Barristers in the UK to appoint, which we can help you obtain by direct access.
To find out more about how Arbicon can help with your construction dispute, please use our contact form or call one of our offices.