Generally, litigation and arbitration have been considered for many years as the two mainstream techniques for dispute resolution with others falling under the generic term of "Alternative Dispute Resolution" or "ADR". Since the advent of statutory adjudication in 1998, adjudication has now become another mainstream dispute resolution technique in its own right.

Other techniques for resolving disputes include negotiation, mediation, conciliation, expert determination and dispute review/resolution boards.

Negotiation

Negotiation, or structured negotiation as it is sometimes known, is where the parties to the dispute have not been able to settle matters perhaps because they have become too entrenched in positions or are not prepared to concede points as a matter of principle. The introduction of an impartial skilled negotiator, by either party, can re-focus efforts on the real issues and identify the strengths and weaknesses of each party's case to assist in a settlement.



Mediation

Mediation is a process whereby the parties to a dispute agree to appoint a neutral or mediator to explore whether or not a solution can be found. Mediation is normally conducted on a "without prejudice" basis and either party can walk away from the process at anytime. There are various models for mediation. Generally, a construction industry model involves each party making a limited written submission prior to the mediation and then on the chosen day the mediator conducts one or more sessions with all present interleaved with the parties breaking off into individual "caucuses" for single party sessions. The mediator gives each party an opportunity to present its case and then, by discussion with each party separately, by focussing on the strengths and weaknesses of each party's case and explores through discussion whether or not a compromise can be found. If an agreement is reached this is reduced to writing and becomes a binding and legally enforceable contract. If no agreement is reached the evidence adduced in the mediation, unless both parties agree otherwise, generally may not be used in any subsequent formal proceedings.

Mediation is fast becoming another mainstream method of dispute resolution. Mediation has considerable potential to reduce claim costs, legal costs and management time and to provide the protagonists with the satisfaction that they have been listened to by a tribunal. Also, the courts have had a large part to play in mediation becoming more popular, as since the introduction of the Civil Procedure Rules in 1999 incorporating provisions for mediation, the failure of a party agreeing to mediate may have adverse cost consequences.



Conciliation

Conciliation is a contractual process whereby a dispute is referred to a named or appointed conciliator to make what is known as a recommendation. Generally, the contract will provide a set of rules for how the conciliation is to be conducted together with the contractual effect of the recommendation.

Some contractual rules make the conciliator's recommendation non-binding whilst others make it binding until practical/substantial completion or until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement.

Expert determination

Expert determination is a contractual process whereby an "Expert" is appointed to investigate the merits of each party's case to a dispute and declare their respective legal rights and obligations.

The contract or a collateral agreement provides for the appointment of the expert and sets out the extent of his or her jurisdiction. It is common in an expert determination to give the "Expert" jurisdiction to make a final and binding decision on the dispute, which has the effect of not making the decision subject to review by either an arbitrator or the courts.



Dispute review / resolution boards

A dispute review/resolution board ("DRB") is a contractual process for the reference of a dispute, normally whilst the works are under construction. Generally, there are two types of DRB, the first is a dispute review board, which "reviews" the parties' positions and makes a recommendation and the second is a dispute resolution board, which makes a binding decision that may or may not be subject to review by arbitration or the court. The DRB usually consists of three technically qualified, experienced, respected, impartial and objective professionals from different disciplines.

DRB's are commonly used on large international projects but the process is now gaining much respect from the construction industry in the UK as an effective dispute avoidance/resolution technique.

Essentially it is the contract between the parties that sets the DRB's jurisdiction and power including the procedure for submission of a matter and the effect of the DRB's decision.

Nigel, as a construction professional combining qualifications and experience in commerce and dispute resolution techniques, can provide advice and assistance to parties either involved in using alternative dispute resolution techniques or to receive appointments to act in the roles set out above.