The obligation placed on parties to consider alternative dispute resolution (ADR) mechanisms, is well documented and the subject of our ever evolving laws.
Parties to a dispute (and their lawyers) must actively consider ADR. ADR ranges from non-binding processes, such as without prejudice round the table meetings to mediation, to binding processes, such as expert determinations and arbitration. Resorting to the courts is often referred to as “the last tool in the toolbox”. It is normally prudent for the parties to explore non-binding forms of ADR first as often this is the most cost effective way to resolve a dispute. Where that is not appropriate or it has failed, parties should go on to consider binding ADR processes ranging from expert determinations through to arbitration.
In relation to construction and engineering disputes, the Royal Institution of Chartered Surveyors (RICS) has launched a new arbitration service specifically for construction and engineering disputes which offers:
- Fast track arbitration services for disputes under £100,000. The fast track caps a party’s recoverable costs, limits the amount arbitrators can charge and requires the publication of arbitration awards every six months.
- A select arbitration service intended to provide a “viable alternative” to the Technology and Construction Court for high value complex disputes publishing awards within 12 months.
The advantage of the RICS service is that this can achieve a more comprehensive deliberation of the issues rather than the current adjudication process (which can often be cursory in approach). Currently only the fast track arbitration service rules are available on the RICS website; further development is planning in time.
This service illustrates the ever-evolving methods of ADR, promoted by various professions.
Practitioners who do not advise their clients of all of the alternatives available to them in particular disciplines,could find themselves facing questions, complaints and possible claims from their clients, having not advised them of cheaper and quicker alternatives to the Court process.