- The document summarizes an interview between Jamie Ritchie and Niall Lawless, an experienced Irish construction adjudicator, about adjudication in Ireland.
- In the interview, Lawless discusses some of the main differences between adjudication in the UK and Ireland, including that in Ireland it is limited to payment disputes. He also provides insight into typical adjudicator backgrounds and fees.
- Common grounds for challenging an adjudicator's decision that Lawless has seen include issues around jurisdiction and natural justice. He also notes some circumstances where an oral hearing in adjudication may be appropriate.
Robert Hunt presented on the rise of expert determination as an alternative to arbitration. He discussed key differences between the two processes, with expert determination being less formal and allowing the expert to use their expertise to make determinations, unlike arbitrators. Expert determination can provide substantial savings in time and costs compared to arbitration. However, it does not allow for discovery of documents and subpoenas, and determinations must be enforced through courts. While anecdotally popular as part of tiered dispute resolution processes, data from one organization showed slightly more requests for arbitration than expert determination.
This document discusses dispute resolution methods in construction, including litigation, arbitration, and alternative dispute resolution. It defines key terms like claim, conflict, and dispute. Arbitration is described as the most popular method in construction for resolving formal disputes through a private tribunal appointed by the parties' agreement. Alternative dispute resolution seeks to resolve conflicts privately without litigation and may involve negotiation, mediation, conciliation or other third party involvement. The document examines the history of dispute resolution moving from informal meetings to arbitration to ease court congestion. The arbitration process and alternative methods like dispute review boards are outlined.
Top 5 Methods for Resolving UK Construction DisputesSarah Fox
According to the Arcadis Global Disputes Survey 2016, the average value of a construction dispute is near $46m and it takes over 16 months to resolve. This guide looks at your
five main options to resolve a dispute in the UK construction industry. It compares litigation (court proceedings), arbitration, adjudication, negotiation and mediation.
The author is Sarah Fox 500 Words Ltd and you can get regular tips for construction contracts to help you avoid disputes and the need for dispute resolution methods in her fortnightly tips sheet http://just500words.co.uk/signup.
Construction Contract Dispute Resolutionrcnewcomer
This document discusses various methods of dispute resolution for construction contracts, including litigation, arbitration, mediation, and negotiation. It provides details on arbitration and mediation processes and contract provisions. Key aspects of dispute resolution covered are the different dispute resolution methods, selecting arbitrators and mediators, contract reviews for arbitration provisions, and tips for negotiation, mediation and arbitration. Risk management strategies for construction projects are also summarized, including risk assessment, analysis and mitigation planning.
The document discusses various alternative dispute resolution (ADR) methods for avoiding litigation, including their advantages and disadvantages. It focuses on mediation as an option. Key points include:
- Mediation is a flexible confidential process where a neutral mediator helps parties work towards a negotiated agreement. Agreements are not binding unless a settlement is reached.
- UK court rules encourage staying proceedings for one month to allow ADR like mediation. Courts will consider parties' efforts to resolve disputes when deciding on costs.
- Case law establishes that refusing reasonable offers to mediate carries risks of costs sanctions if litigation proceeds. Factors for assessing reasonableness are outlined.
- Proper consideration of ADR options is required before
Lecture slides to M.A.Sc. students on pros and cons of various dispute resolution venues with a case study added that moved 10-year case from complaint to appeal court decision
Current Issues in Securities RegulationNow Dentons
Mark Evans, a partner in the FMC Toronto office, was invited to speak at the Second Annual Securities Symposium this month about current issues in the area of Securities Regulation.
This document provides an overview of dispute resolution mechanisms in construction projects. It begins by defining what a dispute is and noting that disputes can cause projects to fail and for all parties to incur losses. The main causes of disputes are then outlined, including issues with payments, contract documentation, time and cost overruns, and construction information and supervision. Alternative dispute resolution mechanisms are introduced, including negotiation, mediation, dispute review boards, arbitration, and litigation. Each of these options is then described in one to three paragraphs detailing the key aspects and processes involved.
Robert Hunt presented on the rise of expert determination as an alternative to arbitration. He discussed key differences between the two processes, with expert determination being less formal and allowing the expert to use their expertise to make determinations, unlike arbitrators. Expert determination can provide substantial savings in time and costs compared to arbitration. However, it does not allow for discovery of documents and subpoenas, and determinations must be enforced through courts. While anecdotally popular as part of tiered dispute resolution processes, data from one organization showed slightly more requests for arbitration than expert determination.
This document discusses dispute resolution methods in construction, including litigation, arbitration, and alternative dispute resolution. It defines key terms like claim, conflict, and dispute. Arbitration is described as the most popular method in construction for resolving formal disputes through a private tribunal appointed by the parties' agreement. Alternative dispute resolution seeks to resolve conflicts privately without litigation and may involve negotiation, mediation, conciliation or other third party involvement. The document examines the history of dispute resolution moving from informal meetings to arbitration to ease court congestion. The arbitration process and alternative methods like dispute review boards are outlined.
Top 5 Methods for Resolving UK Construction DisputesSarah Fox
According to the Arcadis Global Disputes Survey 2016, the average value of a construction dispute is near $46m and it takes over 16 months to resolve. This guide looks at your
five main options to resolve a dispute in the UK construction industry. It compares litigation (court proceedings), arbitration, adjudication, negotiation and mediation.
The author is Sarah Fox 500 Words Ltd and you can get regular tips for construction contracts to help you avoid disputes and the need for dispute resolution methods in her fortnightly tips sheet http://just500words.co.uk/signup.
Construction Contract Dispute Resolutionrcnewcomer
This document discusses various methods of dispute resolution for construction contracts, including litigation, arbitration, mediation, and negotiation. It provides details on arbitration and mediation processes and contract provisions. Key aspects of dispute resolution covered are the different dispute resolution methods, selecting arbitrators and mediators, contract reviews for arbitration provisions, and tips for negotiation, mediation and arbitration. Risk management strategies for construction projects are also summarized, including risk assessment, analysis and mitigation planning.
The document discusses various alternative dispute resolution (ADR) methods for avoiding litigation, including their advantages and disadvantages. It focuses on mediation as an option. Key points include:
- Mediation is a flexible confidential process where a neutral mediator helps parties work towards a negotiated agreement. Agreements are not binding unless a settlement is reached.
- UK court rules encourage staying proceedings for one month to allow ADR like mediation. Courts will consider parties' efforts to resolve disputes when deciding on costs.
- Case law establishes that refusing reasonable offers to mediate carries risks of costs sanctions if litigation proceeds. Factors for assessing reasonableness are outlined.
- Proper consideration of ADR options is required before
Lecture slides to M.A.Sc. students on pros and cons of various dispute resolution venues with a case study added that moved 10-year case from complaint to appeal court decision
Current Issues in Securities RegulationNow Dentons
Mark Evans, a partner in the FMC Toronto office, was invited to speak at the Second Annual Securities Symposium this month about current issues in the area of Securities Regulation.
This document provides an overview of dispute resolution mechanisms in construction projects. It begins by defining what a dispute is and noting that disputes can cause projects to fail and for all parties to incur losses. The main causes of disputes are then outlined, including issues with payments, contract documentation, time and cost overruns, and construction information and supervision. Alternative dispute resolution mechanisms are introduced, including negotiation, mediation, dispute review boards, arbitration, and litigation. Each of these options is then described in one to three paragraphs detailing the key aspects and processes involved.
This document discusses the use of neutrals in electronic discovery (ESI) mediation. It notes that ESI takes many forms and is a major part of discovery, resulting in increased disputes and costs. Engaging a neutral early can help parties develop an ESI discovery plan to address issues like preservation, search terms, and production formats. A neutral can facilitate cooperation and proportionality to control costs. Both state and federal rules have been amended to better address ESI discovery and sanctions. Mediation seeks to identify practical solutions, maintain self-determination, and avoid sanctions. Initial phone conferences can establish agendas to efficiently address technical ESI issues with experts. Hybrid mediation-arbitration processes like arb-med and
Construction Dispute Resolution and Avoidance in a Boom MarketFrancis Ho
This document discusses construction dispute resolution and avoidance in a booming construction market. It summarizes various dispute resolution methods including (1) adjudication which provides quick, binding interim decisions but may be less suited to complex cases; (2) court proceedings through the specialist Technology and Construction Court which are suited to complex cases but slow and expensive; (3) arbitration which is confidential but can be slow to start; and (4) alternative dispute resolution methods like mediation and dispute boards. It stresses that dispute avoidance through careful contract drafting and project management is the cheapest option.
Piddington CPD - Mediation - 9 November 2016 FinalAaron McDonald
This document summarizes key points from a mediation masterclass discussing when to mediate and how to prepare for mediation.
The first point made is that mediating early in a case has advantages, as even if a case doesn't settle at the first mediation, it allows for an assessment of further steps needed to improve the chances of settlement later. Subsequent sections discuss ensuring the right people attend mediation, such as those with authority to settle; providing documents to the mediator in advance; discussing the case merits and costs with the client in advance; and considering alternatives to settlement like BATNA and WATNA. Finally, the document emphasizes that preparing for mediation is as important as preparing for trial.
Presentation - Construction Contract Dispute ResolutionJustin DeMerchant
This document summarizes a presentation on dispute resolution in construction contracts. It discusses drafting clear and fair dispute resolution clauses that facilitate agreement, alternatives to litigation like mediation and arbitration, and best practices for settling disputes. Key points include outlining a logical escalation process in clauses, using clauses effectively by following processes and proper notice, and considering entitlement, valuation, risks, costs when determining whether to settle a dispute.
The document discusses ways that arbitrators can save time and costs in commercial arbitration proceedings. It identifies five key methods: 1) using pre-hearing meetings to simplify issues and reach settlements; 2) employing a Scott Schedule to compartmentalize complex disputes; 3) exchanging written proofs in advance to allow scrutiny of documents; 4) admitting written statements instead of oral openings and closings; and 5) choosing hearing locations for convenience. The document argues these techniques can streamline proceedings and focus on material issues to reduce associated costs and delays of arbitration.
This document discusses best practices for providing unbundled legal services over the internet. It begins by defining unbundled legal services as breaking legal tasks into separate services that clients can purchase individually. It then covers ethical considerations like ensuring clients understand the limited scope. The best practices section recommends analyzing legal matters into separate tasks, using engagement agreements to define the limited scope, educating clients, and sending termination letters. The goal is to make legal services more affordable and accessible.
Mediation is an emerging dispute resolution method in Brazil, currently used primarily for family law cases between individuals. There is no statute governing mediation. Infrastructure and experienced mediators are limited, though some organizations like the Center for Arbitration and Mediation provide mediation services. Courts may refer parties to conciliation divisions after a complaint is filed to attempt settlement before litigation proceeds, but settlement rates are low. Overall mediation culture is still developing in Brazil.
Dispute Resolution Boards have proven highly effective (greater than 98% success rate) in resolving disputes in segments of the construction industry and preventing claims from going to arbitration or litigation. While more successful than all other non-binding alternatives, their use has been concentrated in specific project types and limited regions. Dispute and construction professionals will benefit from exploring the principles leading to success, and the practice will benefit from broader dissemination of this exciting method.
If you need help in securing your business against conflicts, disputes and arguments? You are at the right place!
Private court is legal, trusted fast and simple justice providing platform.
Visit us to know more at : https://bit.ly/2NbTFAA
This document summarizes Martin Burns' presentation on early intervention and avoiding disputes. It discusses how minor issues can escalate into serious disputes if not addressed early, costing time and money. New methods discussed include conflict avoidance panels, early neutral evaluation, and dispute boards that aim to resolve issues collaboratively before they escalate. Employing early intervention techniques helps identify problems early and create a cooperative environment focused on practical solutions rather than blame. Businesses that regularly use these approaches can better allocate resources to their core operations.
This document summarizes a research paper that proposes a roadmap to optimize statutory construction adjudication of complex payment disputes in Australia. It begins by reviewing criticisms of the current adjudication system in dealing with large, legally and technically complex claims. It then evaluates measures of an effective dispute resolution system, including procedural fairness, accessibility, speed, cost-effectiveness, informality and finality. The document examines the evolution of security of payment legislation across Australian states, noting recommendations to improve adjudication of complex claims. Finally, it proposes using the Queensland model as a benchmark and incorporating additional improvements, such as criteria for timeframes for complex claims, appointment of qualified adjudicators, and a merits review system, to develop an optimized process.
1) ADR methods like mediation and arbitration provide alternatives to litigation that are usually cheaper, faster, and less adversarial. They allow parties more control over outcomes.
2) Common ADR methods include negotiation, mediation, conciliation, arbitration, and tribunals. Mediation involves a neutral third party facilitating compromise, while arbitration involves a third party making a binding decision.
3) Tribunals are bodies that resolve disputes but are not courts, handling issues like immigration, benefits, and employment claims more informally than courts. They aim to be accessible and efficient alternatives.
This document summarizes the views of GE on the need for early resolution in international arbitration based on their experiences. The key points are:
1. Businesses prioritize efficiency, speed, and certainty in dispute resolution but often find international arbitration takes too long, costing unnecessary time and money.
2. While international arbitration has advantages over litigation, its focus on due process delays resolution, frustrating businesses who just want to assess exposure and move on.
3. GE provides examples where arbitration took years with no early decisions on key issues, forcing frustrated parties to expensive settlements just to achieve closure, rather than fair resolution.
4. An early resolution procedure could help address this gap if arbitrators ensured its dilig
Whitepaper: Legal Holds & Data Preservation 2014Zapproved
DOWNLOAD HERE: http://bit.ly/legal-holds-2014
Today's most critical challenges facing legal professionals regarding legal holds and data preservation were discussed by the nation's leading eDiscovery luminaries at the 2nd annual PREX Conference on Preservation Excellence.
This new resource is a compilation of the session content, published so that anyone can benefit from the combined efforts of the outstanding lineup of speakers.
Topics include:
Zubulake 10 Years Later: The Current Legal Hold Landscape
Creating, Executing and Defending Your Preservation Strategy
Challenges of Social Media and BYOD
Impact of the Upcoming Changes to Federal Rules of Civil Procedure
Judicial Panel: View from the Bench on Preservation
This 33-page resource features commentary by industry experts, litigation and eDiscovery specialists from top law firms, in-house counsel from G2000 corporations, and 4 current and former federal judges.
Advantages and Disadvantages of Arbitration and MediationDementian Guschov
Dementian Guschov is the president and CEO of Andover Group and has over 30 years of experience presiding over hundreds of mediation and arbitration cases in construction, engineering, and design industries. Mediation allows parties to settle issues without litigation but they can withdraw at any time, while arbitration has a binding decision from the panel. Mediation tends to be faster but more personal, while arbitration is more formal like a courtroom but can provide a one-sided ruling.
The document provides an overview of alternative dispute resolution (ADR) in India. It discusses the problems and delays faced by the court system that necessitate ADR mechanisms. It outlines various ADR methods like negotiation, conciliation, mediation and arbitration. It discusses the Lok Adalat system established under the Legal Services Authority Act and highlights advantages of ADR like lower costs, flexibility and faster resolutions compared to litigation. The document also notes some limitations of ADR and the importance of a supportive legal framework and cultural norms for ADR effectiveness.
CONSTRUCTION Oct16 Wars Behind Closed Doors John Farage O'BrienJohn FFF O'Brien
The document discusses alternative dispute resolution (ADR) for commercial construction contract disputes in Ireland. It makes three key points:
1) ADR processes like arbitration, mediation, and conciliation all occur behind closed doors, maintaining confidentiality of proceedings and outcomes. This has both benefits and drawbacks for resolving disputes and industry learning.
2) The new adjudication process established in 2013 provides another option for resolving payment disputes, but it remains untested in Ireland and may face legal challenges regarding fairness.
3) Mediation and conciliation remain the best forums for construction dispute resolution if parties engage in good faith, but dispute prevention through robust project management is most important.
Alternative Dispute Resolution methods Level III - B.Sc QS (Salford) March ...TheGimhan123
The document discusses alternative dispute resolution (ADR) methods used in the Sri Lankan construction industry. It outlines several reasons for disputes in the industry, including breaches of contract and issues with plans/specifications. The document then describes various ADR methods used, including negotiation, conciliation, mediation, adjudication and arbitration. It notes advantages of ADR methods like minimum delay, confidentiality and lower cost compared to litigation. ADR methods provide fast and cost-effective options for resolving frequent disputes in the construction sector.
The REALTOR Code of EthicsNew Member Orientation ProgramEvangeline Yia
All REALTORS® regardless of their specialty in the real estate business (appraisal, property management, etc.) are bound by the duties in the REALTORS®’ Code of Ethics.
This document discusses various aspects of dispute resolution including alternative dispute resolution (ADR) mechanisms, arbitration, and conciliation. It provides definitions and explanations of key terms like arbitration agreement and different types of arbitration proceedings. The advantages of ADR over litigation are highlighted. Issues related to the jurisdiction and impartiality of arbitrators are also covered. The objectives and relevant sections of the Arbitration and Conciliation Act of 1996 are summarized.
This document discusses the potential participation of third parties like amicus curiae in arbitration proceedings. While some argue this could increase transparency and consider public policy issues, allowing third party participation may contradict the foundation of arbitration which is based on party consent. Arbitration differs from litigation in that it requires the agreement of both parties to arbitrate. This agreement forms the basis of the tribunal's jurisdiction. Introducing third parties could violate the privity of this arbitration agreement. The document will examine arguments for and against third party participation in arbitration and consider whether a balance can be struck between the need for transparency and maintaining arbitration's core features.
This document discusses the use of neutrals in electronic discovery (ESI) mediation. It notes that ESI takes many forms and is a major part of discovery, resulting in increased disputes and costs. Engaging a neutral early can help parties develop an ESI discovery plan to address issues like preservation, search terms, and production formats. A neutral can facilitate cooperation and proportionality to control costs. Both state and federal rules have been amended to better address ESI discovery and sanctions. Mediation seeks to identify practical solutions, maintain self-determination, and avoid sanctions. Initial phone conferences can establish agendas to efficiently address technical ESI issues with experts. Hybrid mediation-arbitration processes like arb-med and
Construction Dispute Resolution and Avoidance in a Boom MarketFrancis Ho
This document discusses construction dispute resolution and avoidance in a booming construction market. It summarizes various dispute resolution methods including (1) adjudication which provides quick, binding interim decisions but may be less suited to complex cases; (2) court proceedings through the specialist Technology and Construction Court which are suited to complex cases but slow and expensive; (3) arbitration which is confidential but can be slow to start; and (4) alternative dispute resolution methods like mediation and dispute boards. It stresses that dispute avoidance through careful contract drafting and project management is the cheapest option.
Piddington CPD - Mediation - 9 November 2016 FinalAaron McDonald
This document summarizes key points from a mediation masterclass discussing when to mediate and how to prepare for mediation.
The first point made is that mediating early in a case has advantages, as even if a case doesn't settle at the first mediation, it allows for an assessment of further steps needed to improve the chances of settlement later. Subsequent sections discuss ensuring the right people attend mediation, such as those with authority to settle; providing documents to the mediator in advance; discussing the case merits and costs with the client in advance; and considering alternatives to settlement like BATNA and WATNA. Finally, the document emphasizes that preparing for mediation is as important as preparing for trial.
Presentation - Construction Contract Dispute ResolutionJustin DeMerchant
This document summarizes a presentation on dispute resolution in construction contracts. It discusses drafting clear and fair dispute resolution clauses that facilitate agreement, alternatives to litigation like mediation and arbitration, and best practices for settling disputes. Key points include outlining a logical escalation process in clauses, using clauses effectively by following processes and proper notice, and considering entitlement, valuation, risks, costs when determining whether to settle a dispute.
The document discusses ways that arbitrators can save time and costs in commercial arbitration proceedings. It identifies five key methods: 1) using pre-hearing meetings to simplify issues and reach settlements; 2) employing a Scott Schedule to compartmentalize complex disputes; 3) exchanging written proofs in advance to allow scrutiny of documents; 4) admitting written statements instead of oral openings and closings; and 5) choosing hearing locations for convenience. The document argues these techniques can streamline proceedings and focus on material issues to reduce associated costs and delays of arbitration.
This document discusses best practices for providing unbundled legal services over the internet. It begins by defining unbundled legal services as breaking legal tasks into separate services that clients can purchase individually. It then covers ethical considerations like ensuring clients understand the limited scope. The best practices section recommends analyzing legal matters into separate tasks, using engagement agreements to define the limited scope, educating clients, and sending termination letters. The goal is to make legal services more affordable and accessible.
Mediation is an emerging dispute resolution method in Brazil, currently used primarily for family law cases between individuals. There is no statute governing mediation. Infrastructure and experienced mediators are limited, though some organizations like the Center for Arbitration and Mediation provide mediation services. Courts may refer parties to conciliation divisions after a complaint is filed to attempt settlement before litigation proceeds, but settlement rates are low. Overall mediation culture is still developing in Brazil.
Dispute Resolution Boards have proven highly effective (greater than 98% success rate) in resolving disputes in segments of the construction industry and preventing claims from going to arbitration or litigation. While more successful than all other non-binding alternatives, their use has been concentrated in specific project types and limited regions. Dispute and construction professionals will benefit from exploring the principles leading to success, and the practice will benefit from broader dissemination of this exciting method.
If you need help in securing your business against conflicts, disputes and arguments? You are at the right place!
Private court is legal, trusted fast and simple justice providing platform.
Visit us to know more at : https://bit.ly/2NbTFAA
This document summarizes Martin Burns' presentation on early intervention and avoiding disputes. It discusses how minor issues can escalate into serious disputes if not addressed early, costing time and money. New methods discussed include conflict avoidance panels, early neutral evaluation, and dispute boards that aim to resolve issues collaboratively before they escalate. Employing early intervention techniques helps identify problems early and create a cooperative environment focused on practical solutions rather than blame. Businesses that regularly use these approaches can better allocate resources to their core operations.
This document summarizes a research paper that proposes a roadmap to optimize statutory construction adjudication of complex payment disputes in Australia. It begins by reviewing criticisms of the current adjudication system in dealing with large, legally and technically complex claims. It then evaluates measures of an effective dispute resolution system, including procedural fairness, accessibility, speed, cost-effectiveness, informality and finality. The document examines the evolution of security of payment legislation across Australian states, noting recommendations to improve adjudication of complex claims. Finally, it proposes using the Queensland model as a benchmark and incorporating additional improvements, such as criteria for timeframes for complex claims, appointment of qualified adjudicators, and a merits review system, to develop an optimized process.
1) ADR methods like mediation and arbitration provide alternatives to litigation that are usually cheaper, faster, and less adversarial. They allow parties more control over outcomes.
2) Common ADR methods include negotiation, mediation, conciliation, arbitration, and tribunals. Mediation involves a neutral third party facilitating compromise, while arbitration involves a third party making a binding decision.
3) Tribunals are bodies that resolve disputes but are not courts, handling issues like immigration, benefits, and employment claims more informally than courts. They aim to be accessible and efficient alternatives.
This document summarizes the views of GE on the need for early resolution in international arbitration based on their experiences. The key points are:
1. Businesses prioritize efficiency, speed, and certainty in dispute resolution but often find international arbitration takes too long, costing unnecessary time and money.
2. While international arbitration has advantages over litigation, its focus on due process delays resolution, frustrating businesses who just want to assess exposure and move on.
3. GE provides examples where arbitration took years with no early decisions on key issues, forcing frustrated parties to expensive settlements just to achieve closure, rather than fair resolution.
4. An early resolution procedure could help address this gap if arbitrators ensured its dilig
Whitepaper: Legal Holds & Data Preservation 2014Zapproved
DOWNLOAD HERE: http://bit.ly/legal-holds-2014
Today's most critical challenges facing legal professionals regarding legal holds and data preservation were discussed by the nation's leading eDiscovery luminaries at the 2nd annual PREX Conference on Preservation Excellence.
This new resource is a compilation of the session content, published so that anyone can benefit from the combined efforts of the outstanding lineup of speakers.
Topics include:
Zubulake 10 Years Later: The Current Legal Hold Landscape
Creating, Executing and Defending Your Preservation Strategy
Challenges of Social Media and BYOD
Impact of the Upcoming Changes to Federal Rules of Civil Procedure
Judicial Panel: View from the Bench on Preservation
This 33-page resource features commentary by industry experts, litigation and eDiscovery specialists from top law firms, in-house counsel from G2000 corporations, and 4 current and former federal judges.
Advantages and Disadvantages of Arbitration and MediationDementian Guschov
Dementian Guschov is the president and CEO of Andover Group and has over 30 years of experience presiding over hundreds of mediation and arbitration cases in construction, engineering, and design industries. Mediation allows parties to settle issues without litigation but they can withdraw at any time, while arbitration has a binding decision from the panel. Mediation tends to be faster but more personal, while arbitration is more formal like a courtroom but can provide a one-sided ruling.
The document provides an overview of alternative dispute resolution (ADR) in India. It discusses the problems and delays faced by the court system that necessitate ADR mechanisms. It outlines various ADR methods like negotiation, conciliation, mediation and arbitration. It discusses the Lok Adalat system established under the Legal Services Authority Act and highlights advantages of ADR like lower costs, flexibility and faster resolutions compared to litigation. The document also notes some limitations of ADR and the importance of a supportive legal framework and cultural norms for ADR effectiveness.
CONSTRUCTION Oct16 Wars Behind Closed Doors John Farage O'BrienJohn FFF O'Brien
The document discusses alternative dispute resolution (ADR) for commercial construction contract disputes in Ireland. It makes three key points:
1) ADR processes like arbitration, mediation, and conciliation all occur behind closed doors, maintaining confidentiality of proceedings and outcomes. This has both benefits and drawbacks for resolving disputes and industry learning.
2) The new adjudication process established in 2013 provides another option for resolving payment disputes, but it remains untested in Ireland and may face legal challenges regarding fairness.
3) Mediation and conciliation remain the best forums for construction dispute resolution if parties engage in good faith, but dispute prevention through robust project management is most important.
Alternative Dispute Resolution methods Level III - B.Sc QS (Salford) March ...TheGimhan123
The document discusses alternative dispute resolution (ADR) methods used in the Sri Lankan construction industry. It outlines several reasons for disputes in the industry, including breaches of contract and issues with plans/specifications. The document then describes various ADR methods used, including negotiation, conciliation, mediation, adjudication and arbitration. It notes advantages of ADR methods like minimum delay, confidentiality and lower cost compared to litigation. ADR methods provide fast and cost-effective options for resolving frequent disputes in the construction sector.
The REALTOR Code of EthicsNew Member Orientation ProgramEvangeline Yia
All REALTORS® regardless of their specialty in the real estate business (appraisal, property management, etc.) are bound by the duties in the REALTORS®’ Code of Ethics.
This document discusses various aspects of dispute resolution including alternative dispute resolution (ADR) mechanisms, arbitration, and conciliation. It provides definitions and explanations of key terms like arbitration agreement and different types of arbitration proceedings. The advantages of ADR over litigation are highlighted. Issues related to the jurisdiction and impartiality of arbitrators are also covered. The objectives and relevant sections of the Arbitration and Conciliation Act of 1996 are summarized.
This document discusses the potential participation of third parties like amicus curiae in arbitration proceedings. While some argue this could increase transparency and consider public policy issues, allowing third party participation may contradict the foundation of arbitration which is based on party consent. Arbitration differs from litigation in that it requires the agreement of both parties to arbitrate. This agreement forms the basis of the tribunal's jurisdiction. Introducing third parties could violate the privity of this arbitration agreement. The document will examine arguments for and against third party participation in arbitration and consider whether a balance can be struck between the need for transparency and maintaining arbitration's core features.
This document provides an overview of arbitration and summarizes key sections from a report on arbitration. It begins with background on the purpose and objectives of the report, which is to understand arbitration and how it settles complex disputes. It then reviews definitions of arbitration, its importance, objectives, principles, types, and process. Specifically, arbitration is defined as the submission of a dispute to an impartial arbitrator for a decision. It is an important alternative dispute resolution mechanism because it provides flexibility, neutrality, and binding final decisions in a confidential process. The objectives of arbitration are to cover domestic and international disputes and ensure fair resolution. The characteristics include being voluntary, private, quicker and less expensive than litigation. The types discussed are voluntary, compuls
Grant Jones provides an overview of alternative dispute resolution (ADR) techniques for chartered accountants, focusing on arbitration, mediation, and expert determination. He summarizes HM Revenue and Customs' new mediation scheme for small businesses, which aims to resolve tax disputes in a cost-effective manner. However, some argue the scheme lacks independence as the mediators are HMRC staff. The document also outlines the mediation process, the roles of the mediator, and techniques mediators use to facilitate agreement between disputing parties.
The document provides information on best practices for alternative dispute resolution (ADR). It discusses that ADR can help support court reform by providing alternatives to full legal proceedings. Different ADR options are described from facilitated negotiations to arbitration that resembles a courtroom process. The document also discusses how ADR methods like dispute boards have been incorporated into FIDIC construction contracts to allow for binding decisions on disputes prior to formal legal proceedings. Key aspects of employing dispute boards and their increasing focus on dispute avoidance are covered.
This document discusses alternative dispute resolution (ADR). It defines arbitration and describes its advantages as being cheaper, faster, and allowing parties more control over the process compared to litigation. The document outlines different types of ADR like mediation, conciliation, and negotiation. It notes that ADR provides confidentiality, uses experienced neutral parties, and takes a cooperative approach. The document also discusses disadvantages like potential unequal bargaining power between parties and lack of precedent. Overall, it analyzes the pros and cons of using ADR to resolve disputes compared to traditional litigation.
This document provides an overview of alternative dispute resolution (ADR) methods and how they compare to litigation. It discusses the inefficiencies and backlog issues with litigation. The key ADR methods like mediation, arbitration, and negotiation are introduced. The document highlights advantages of ADR like flexibility, confidentiality and cost savings compared to litigation which can be lengthy, public, and expensive. It also notes some potential disadvantages of ADR like lack of precedent setting and enforceability. Overall the document provides a helpful introduction to understanding ADR approaches versus traditional litigation.
This newsletter discusses statutory adjudication and how it can benefit the construction industry in Hong Kong. It provides an overview of current alternative dispute resolution methods like mediation and arbitration and their limitations in resolving payment disputes quickly. Statutory adjudication addresses this gap by providing a fast-track dispute process that delivers a temporary binding decision within a strict timetable of around 4 months. It also gives the unpaid party the right to suspend work if the adjudicated payment is not made, as well as prohibiting "pay-when-paid" clauses that can delay payments down the supply chain. While some question how just the short adjudication timetable is, overall it aims to ease cash flow problems in the industry through prompt resolution of payment disputes.
Conventional wisdom suggests that businesses choose binding arbitration mainly because it ensures cost savings and shorter resolution times inter alia. These are often touted as one of arbitration’s top advantages over traditional court litigation. Mounting delays and escalating costs have led many to wonder whether arbitration is really preferable to litigation. With the rise in popularity of this dispute resolution alternative, especially among sophisticated parties in complex international matters, many of those having gone through an arbitration procedure attest that this is more of a myth than a reality and that arbitration may not be so inexpensive and timeous after all. In fact, the arbitration community is increasingly concerned with reducing the costs of arbitration, and ensure timely resolution so it can continue to serve as a financially viable and attractive alternative to litigation because the longer the proceedings, the more expensive they will be. This paper identifies the areas where cost and time quickly accrue and then designs ways by which an arbitrator can save time and rein in such cost.
This type of conflict resolution involves an independent arbitrator who is contracted to examine the dispute and the two positions, and make recommendations on possible resolutions. (2008, Law Reform) Advisory ADR offers a more hands-on approach than Facilitative ADR.
Both Facilitative and Advisory ADR approaches are employed at a similar juncture in the dispute process: when a disagreement escalates, and may result in legal action. The latter are often referred to as evaluative, as they require an external body that assesses the facts, evidence, and stances of those involved.
Mitigating Litigation Risk at the Deal Table M&A Part II Polsinelli PC
Attorneys from Polsinelli's Corporate & Transactional, Financial & Fiduciary Litigation, and Government Investigations practices share the following topics regarding M&A:
*Compartmentalizing Liability: Reducing Risk of Veil-Piercing by Courts and Similar Outcomes
*Alternative Dispute Resolution: Mediation and Arbitration
*Choice of Law Provisions in M&A Agreements
*Venue Selection in M&A Agreements
This newsletter article summarizes two main topics:
1) It discusses a new option for investors to resolve disputes with registered investment advisors (RIAs) through voluntary FINRA arbitration rather than litigation. Arbitration is typically less expensive but provides limited discovery compared to court. Lawyers must consider these factors when deciding the best forum.
2) It provides tips for firms on conducting a compliance project during the typically quieter summer market period. Suggestions include evaluating the firm's compliance program, prioritizing projects that increase efficiencies, and selecting one or two meaningful projects to focus on rather than avoiding all projects.
This document discusses the role of lawyers in providing advice and engaging in negotiations on behalf of clients. It notes that giving advice and negotiating are among the most common tasks lawyers perform. When giving advice, lawyers must consider relevant laws and how courts may rule, alongside clients' goals and options. Negotiations often involve making proposals, considering counterproposals, and compromising to reach agreements. Lawyers must be equipped with proper authority before negotiating and ensure any agreements are legally binding. The document provides details on lawyers' involvement in various types of negotiations, including real estate matters.
A review on techniques and modelling methodologies used for checking electrom...nooriasukmaningtyas
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2. Meet the Adjudicator: LK Shields
interviews Construction Adjudicator
Niall Lawless
29th September 2017 | by Jamie Ritchie
“Adjudication can quickly and irrevocably upend the ADR landscape and status
quo, and unfortunately this has contributed to many ‘thought leaders’
rejecting or being unwilling to promote adjudication as an effective dispute
resolution mechanism. This is doing a great disservice to clients, contractors
and sub-contractors.” Niall Lawless
Jamie Ritchie, Associate Solicitor (Projects, Construction and Energy) at LK Shields is a practitioner with experience of
acting on behalf of claimants (referring parties) and defendants (responding parties) in construction adjudication. In
order to help promote awareness of this form of dispute resolution within the Irish construction industry, Jamie
recently interviewed Niall Lawless (Irish Construction Adjudicator and co-author of the CIC Users’ Guide to
Adjudication) in order to get his take on the future of this currently underutilised process. Below is a transcript of that
interview.
Jamie: Niall, thank you for taking the time to talk to us. In your own words, how would you define
adjudication?
Niall: In Ireland adjudication provides the parties to a construction contract with a process whereby an independent
third party makes a quick decision when the parties are in disagreement over payment. The adjudicator’s decision is
binding until determined by arbitration or litigation and the parties may agree that the adjudicator’s decision is final
and binding.
Jamie: You have many years’ experience of adjudication across multiple jurisdictions. Tell us a bit about
your experience and your background?
Niall: My early ADR experience was as a Chartered Building Services Engineer and Mechanical Engineer acting as
expert witness at all pleading stages and giving evidence under examination in arbitration and the Technology and
Construction Court in London numerous times. That led me to Fellowship of the Chartered Institute of Arbitrators in
2001, and becoming a Chartered Arbitrator in 2004. With the rapid and widespread adoption of adjudication in the UK
effectively displacing construction industry arbitration and litigation, it was natural to want to apply the practice and
procedure, knowledge, process and skills learned through arbitration to make adjudication decisions.
I have just started a second three year term as Chair of the Construction Industry Council (UK) Adjudicator Nominating
Body Management Board. I am a Centre for Effective Dispute Resolution (CEDR) and a Chartered Institute of
Arbitrator’s (CIArb) accredited mediator, experienced acting as mediator in multi-million Euro construction and
3. engineering disputes.
Jamie: What would you say are the main differences between adjudication in the UK and Ireland?
Niall: In arbitration it is widely recognised that allowing the parties to bifurcate their dispute into liability and quantum
can be the most cost effective and efficient way to proceed. Over the last year I have been involved with two
substantial disputes referred to adjudication where the parties did not want a decision on an amount of money, rather
just a decision on principle. In one dispute the parties asked the adjudicator to decide what the conditions of contract
were, and in another dispute the parties asked the adjudicator to decide the method of measurement which ought
properly to be applied to thermal insulation work undertaken. The adjudicator’s decision on these matters would
allow the parties to move forward together.
For me the dominant and regrettable difference is that in the UK parties can refer any dispute, whereas in Ireland the
referral is limited to a payment dispute. This limits party autonomy, it constrains adjudication and reduces its efficacy,
and can undermine the objective of the dispute being processed in the shortest time and at the lowest cost.
Jamie: Given that the Construction Contracts Act (2013) provides that a party to a construction contract
can only refer a payment dispute to adjudication. In your own words, how would you define a payment
dispute?
Niall: In adjudication, the words ‘payment dispute’ do not have a specialised meaning. In the ordinary use of the
English language, there is a dispute over payment if a party has refused to pay a sum claimed, or has denied that the
sum claimed is owed.
Adjudicators regularly face a jurisdictional challenge on the grounds 'No dispute has crystallised'. To avoid incurring
cost and time, referring parties should make sure that a dispute has crystallised and is suitable for adjudication. For a
dispute to crystallise there must have been an opportunity for each of the parties to consider the position adopted by
the other and to formulate reasoned arguments. If a claim is ignored a dispute can also crystallise. There does not
have to be an express rejection of a claim, a dispute can arise through a period of silence. The period of silence before
inferring there is a dispute depends heavily upon the specific circumstances. Adjudicators should not adopt an overly
legalistic analysis of what the dispute between the parties is.
Jamie: The Act has facilitated the establishment of a panel of adjudicators. What is the typical professional
background of an adjudicator and what do they typically charge?
Niall: Following a rigorous assessment process the Public Appointments Service recommended suitably qualified
persons for selection to the Department of Jobs, Enterprise and Innovation’s Panel of Adjudicators. The Panel
comprises construction and legal professionals meeting the requirements set out in section 8 of the Construction
Contracts Act.
Becoming a construction adjudicator requires a significant investment in education and training, which is expensive
and time consuming. Skilled adjudicators continue such investments so that they are always kept abreast with
developments and updates in the industry. The parties in adjudication should expect to pay an hourly rate
commensurate with employing someone qualified to a senior level in their primary profession, and who has additional
expertise and skills. Whereas there is some consistency as to the hourly charge of lawyer adjudicators, there is a wide
diversity in the hourly charge rate of construction profession adjudicators. Some of whom take the view that as they
4. operate at the same level and perform the same work as lawyer adjudicators, plus they utilise their sector-specific
knowledge and expertise, the hourly charges should be similar or higher. Other construction profession adjudicators
charge an hourly rate consistent with the lower rates for providing architectural, engineering or quantity surveying
services.
Jamie: What are the most common grounds which you have come across for challenging an adjudicator’s
decision?
Niall: Jurisdiction is an adjudicator’s authority to make a decision. The Notice of Intention confines the limits of the
adjudicator's jurisdiction. If the adjudicator does not have jurisdiction, or acts in a way to lose jurisdiction, then a
competent court will not enforce any purported adjudicator’s decision.
In adjudication, it is common for the responding party to raise jurisdictional challenges, these will fall into two
categories. The first are threshold jurisdictional challenges: for example a dispute has not crystallised, the adjudicator
has not been properly appointed, or there has been a document or procedural misstep. The second are breach of
natural justice jurisdictional challenges: for example the adjudicator has given one party unfair advantage, was biased,
or used their own expert knowledge without allowing the parties to make submissions.
To help maintain confidence and good order in the adjudication system, the adjudicator should investigate any
challenge to their jurisdiction and arrive at a non-binding conclusion. To avoid incurring unnecessary expense, the
best time to do that is as soon as possible. It is a regrettable feature of adjudication that the adjudicator and the
parties spend a great deal of time and money dealing with jurisdiction.
Jamie: Under what circumstances would you hold an oral hearing in adjudication?
Niall: The adjudicator is empowered to decide the adjudication procedure. For example, the adjudicator can take the
initiative in ascertaining the facts and the law necessary to reach a decision, make use of their own specialist
knowledge, and decide whether it is necessary or helpful in their decision-making to meet jointly with the parties and
their representatives.
Although most adjudication is on a documents only basis, there are times when the adjudicator or the parties want to
have a meeting. Whereas the Construction Contracts Act uses the term ‘oral hearing’, in adjudication, I normally use
the term ‘meeting’ rather than ‘hearing’. In legal terminology, a ‘hearing’ is a legal proceeding where a disputed fact or
issue of law is tried and evidence is presented to help determine an issue. The term ‘meeting’ connotes a less formal,
less adversarial proceeding, with more relaxed standards of evidence and process.
Any meeting should have a specific purpose. A meeting can be helpful where the quality of submissions is
inadequate; there is conflicting evidence from experts or witnesses of fact, to inspect site based physical evidence, or
for other reasons. If both parties want to have a meeting, I will accommodate their request, even if the meeting costs
will be large compared to the amount in dispute. If only one party wants to have a meeting, I will accommodate its
request, only if the meeting will assist me in making my decision.
Jamie: In your experience, what is the single biggest mistake a referring party and a responding party can
make in adjudication?
Niall: Before referring your dispute to adjudication, you must decide that it is the best course of action for you. Have
5. you really reached the ‘end of the road’ with negotiation, early neutral evaluation and mediation? Have you learned
anything during those alternative dispute resolution procedures that helps inform your decision whether to use
adjudication, or what is the best time to do that? For example, when you commence adjudication, will the other party
have a valid response that you owe them money, or will your referral to adjudication trigger the other party to
commence adjudication against you? In addition, it makes little sense to invest energy and resources to prevail in
adjudication, and then a court judgment to enforce the adjudicator’s decision, if the other party will not have the
money to pay you.
Before commencing adjudication, you should audit your adjudication risk. Risk audit is a process, which helps you
make sensible commercial decisions. It highlights risks, their nature and scope, and allows you to determine how to
prevent or reduce the risks. The biggest mistake that a referring party can make is not to undertake a formal audit of
risk.
The response is the responding party’s opportunity to refute all of the allegations that the referring party has made. It
should rebut the factual and legal claims advanced; it should explain the basis for the rebuttal by clarifying what the
facts are, and referring their effect to the contract and the law; it should set out full details of any cross-claims.
However, in adjudication the responding party will usually only have seven to fourteen days to prepare its response to
convince the adjudicator that there is a more plausible alternative story.
With good practice of construction management, much of the information required to prepare a response should be
readily available. The information required will be the same information that you have relied upon to reject the
referring party’s claims, and therefore should be on file. The biggest mistake a responding party can make is not to
contemporaneously document in detail with supporting evidence why it has not paid money claimed.
Jamie: In your experience, what are the biggest challenges that adjudicators face?
Niall: Acting as adjudicator is not for the faint hearted. It can be a brutal process with many snares and traps set along
the way. It is in the nature of some claims consultants, lawyers and parties to bully and routinely use intimidatory
tactics in adjudication. Parties will use tactics such as making spurious challenges as to jurisdiction, deliberately
seeking to confuse the adjudicator by the use of technical or esoteric legal arguments; threatening to take legal
action against the adjudicator or to report him to his professional institution. They seek extensions of time alleging
that the timetable is unfair and a breach of natural justice. They use bellicose language. They unreasonably refuse to
pay the adjudicator’s fees and expenses.
Jamie: How do you think contractual adjudication in Ireland will interact with statutory adjudication over
time? Do you think that statutory adjudication will make the use of contractual adjudication (and
independent nominating bodies) more common?
Niall: Adjudication provisions are becoming widespread in contracts and situations where there is no statutory
entitlement. As an engineer I have acted as adjudicator in several non-statutory adjudications, for example, in a multi-
million pound engineering and technology transfer dispute, and also in process engineering disputes.
For a more detailed discussion on the appointment of adjudicators by independent nominating bodies I would refer
the reader to the CIC Users' Guide to Adjudication: Ireland published on 26 July 2017. The Users’ Guide to
Adjudication: Ireland is available for free download from CIC’s website here.
6. Jamie: What are the main advantages and disadvantages of adjudication?
Niall: Arbitration and litigation are more expensive and time consuming than adjudication. Where adjudication enjoys
the full backing of the courts, it expedites and facilitates the flow of money through the contractual chain.
Adjudication is short lived and contemporary; if it takes place during the construction contract, it allows the parties to
modify their conduct or performance early. Adjudication prevents small disputes becoming big disputes.
Adjudication can be informal, and allows for self-representation. Experience shows that an adjudicator’s decision is
often the final solution, or that it provides the parties with the basis to negotiate an alternative final solution
acceptable to them.
Jamie: There appears to be a reluctance amongst the construction industry in Ireland to embrace
adjudication in the same way it has done in the UK. Why do you think that is?
Niall: In Ireland under the Construction Contracts Act, absent agreement between the parties, the adjudicator
appointment will be made by the Chairperson of the Panel appointed by the Minister responsible. Based on
anticipated adjudication referrals during the first five years the Minister’s Panel was initially limited in size to some
thirty members.
In Malaysia the Kuala Lumpur Regional Centre for Arbitration (KLRCA) is the default adjudicator appointment body. By
way of contrast, the total number of adjudicators empanelled by the KLRCA has increased from 363 as at 15 April
2016 to 446 as at 15 of April 2017.
Ireland has a wealth of construction and engineering ADR talent, and I believe that there is a sense of
disenfranchisement and exclusion from the opportunity to act as adjudicator. Adjudication can quickly and
irrevocably upend the ADR landscape and status quo, and unfortunately this has contributed to many ‘thought
leaders’ rejecting or being unwilling to promote adjudication as an effective dispute resolution mechanism. This is
doing a great disservice to clients, contractors and sub-contractors. The irony of this rejection of promoting
adjudication is that with few adjudication referrals in Ireland, there is little incentive for the size of the Minister’s Panel
of Adjudicators to increase.
Jamie: Do you think that adjudication has the potential to become the main method of resolving
construction payment disputes in Ireland?
Niall: In 2012, when I went to Malaysia to undertake the training to be considered for the KLRCA panel of adjudicators
provided for under the Construction Industry Payment and Adjudication Act (CIPAA), there was cynicism as to whether
adjudication would be successful. Malaysian people said that culturally, adjudication was not acceptable, we prefer to
mediate; adjudication will cause a loss of face, which is offensive and not tolerable; employers are vexatious, if I
adjudicate it will be the last time I work for that organisation; adjudication is not suitable for complex disputes,
because of tight timescale; adjudication is unsuitable for final account disputes; adjudication is uncertain and does not
give a final resolution of the dispute; there will be problems with enforcement, even if I win, the other party will not pay.
Notwithstanding the above concerns (and although Malaysia is considerably bigger than Ireland) it is worthwhile
noting that the CIPAA became law on 18 June 2012, and came into force on 15 April 2014. To 31 December 2014 –
there were 29 adjudicator appointments; to 31 December 2015 – there were 199 adjudicator appointments; to 31
December 2016 – there were 461 adjudicator appointments; to 31 December 2017 – the KLRCA is forecasting 700
7. adjudicator appointments.
There is no cultural or structural impediment to the adoption of adjudication in the Republic of Ireland. Adjudication is
widely used in Northern Ireland, albeit more aggressively than in Great Britain.
If you are interested in learning more about adjudication please do not hesitate to contact Jamie Ritchie at
jritchie@lkshields.ie in the Projects and Construction team at LK Shields.
8. About the Author
Jamie Ritchie
Associate Solicitor
Jamie Ritchie is a commercially minded solicitor with extensive former industry experience
as a consultant in construction and procurement. He is also an Associate Member of the
Chartered Institute of Arbitrators.
T: +353 1 6385896 E: jritchie@lkshields.ie