The role of an arbitrator
Arbitration is a dispute resolution procedure whereby two parties in dispute agree (an arbitration agreement) to be bound by a decision of an independent third party (the arbitrator). The role of an arbitrator is similar to that of a judge save that, on principle of ‘party autonomy’ (whereby the parties can agree procedural and evidential matters), the procedure can be less formal. An arbitrator is usually an expert in his/her own right.
An arbitrator should be able to:
Act fairly and impartially using his/her general knowledge of the subject matter;
Reach a fair decision based on the evidence and arguments submitted by the parties; and
When appropriate take the initiative in ascertaining the facts and law.
The advantages of arbitration
Arbitration is private and often informal. Many property or construction disputes can be settled quickly and fairly by arbitration. A Chartered Surveyor arbitrator will be able to understand the disputed issues faced by the parties in a land, property or construction dispute.
Rules governing arbitrators
Arbitration is carried out within a legislative framework with the current Act being the Arbitration Act 2010 which has replaced the Arbitration Acts 1954‐1998.
The arbitrator’s decision, which is called the ‘award’ is final and binding. An arbitrator’s Award has the same status as a Judgment or Order of the High Court and it is enforceable as such. It is not possible to appeal an arbitrator’s Award and there are limited grounds for challenge under Article 34 of the UNCITRAL Model Law adopted in the Arbitration Act 2010.
Agreements to refer disputes to arbitration are often made in a lease or contract. If not, a separate agreement can be made by the parties after a dispute has arisen.
Independent Expert Determination Explained
The role of an independent expert
Expert determination is a process in which an independent third party, acting as an expert rather than a judge or arbitrator, is appointed to decide a dispute (as an independent expert or ‘expert determiner’ — not to be confused with an ‘expert witness’). His/her appointment is by the contract between the parties, which often provides for a nominated appointment.
The duty of an independent expert is to make proper and reasonable investigation and to arrive at a non-negligent decision, tested by what may be expected from the body of professional opinion. He/she may choose, or be so required by contract, to receive, and may take into account, evidence and arguments from the parties to a dispute, but, unlike arbitration, cannot usually be bound by them.
The independent expert should be able to:
Base his/her determination upon his/her own knowledge and his investigations to discover the facts and all other information, including principles of law, relevant to his/her valuation or other issues in dispute;
Settle his/her own contractual terms with the parties, e.g. as to remuneration, extent of inspection, assumptions; and
Carry out the whole of the determination by him/herself
The advantages of independent expert determination
A Chartered Surveyor acting as an independent expert must have in-depth knowledge of the subject matter of the dispute (otherwise he/she is not an expert) and is free to make his/her own investigations. As a result, the dispute can be determined quickly and ‘expertly’ and, usually, once and for all. Expert determination is particularly suited to disputes on discrete technical issues, including disputes of valuation or quality of work and/or materials.
The Expert’s decision is normally final and binding unless indicated to the contrary in the contract. In that context, it is somewhat similar to Arbitration or indeed litigation but the fundamental difference is that the Expert normally has much more procedural scope than an Arbitrator or a Judge. The Expert is not normally bound by all the rules of Natural Justice and so can and is frequently encouraged to rely on his own knowledge or investigations without reference to the parties.
The role of the mediator
The generally accepted description of commercial mediation is a voluntary, non-binding, private dispute resolution process facilitated by a neutral person (the mediator), and which enables the parties to reach a negotiated settlement. A core principle of mediation is that the parties ‘control’ the outcome, rather than it being imposed upon them.
Unless required by contract, parties attend mediation voluntarily. Even where it is a contractual requirement, either party can terminate the mediation at any time. That is usually a powerful first step towards settlement, restoring direct communication where it may have broken down previously.
The role of the mediator is not to resolve the dispute or advise on parties legal rights and obligations. Rather, it seeks to assist parties to work out their own settlement, on terms they can both live with, and looking at a broad range of issues (not limited to legal rights of the facts of the case). Mediation is used in a wide variety of contexts, from multi-million pound commercial disputes to employment and workplace disputes, through conflicts in the family and community settings. Mediation is now increasingly encouraged by the courts whether prior to, or during, the litigation process.
A skilled mediator will have received specific training in all aspects of the mediation process and competencies. He/she should therefore be able to mediate whatever the background of the dispute, regardless of the mediator’s own underlying technical discipline(s). That said, it is the case that many clients will prefer to have a mediator who also has good subject knowledge of a primary technical area that is relevant to the issues in dispute.
A skilled mediator should be able to:
Reopen communications between parties
Engage the parties into taking control of the dispute
Bring a fresh, neutral pair of eyes to an old problem
Take a broader perspective and help parties explore a creative solution
Help parties move toward a realistic, negotiated settlement, in a cost-effective manner
The advantages of mediation
There is one crucial factor that makes mediation different from most other forms of dispute resolution: no one tells the disputing parties who is right and who is wrong. Parties to a dispute will often interpret the same facts and events differently. They see and interpret them through the eyes conditioned by education, culture, age, environment and other factors. In other adjudicative dispute resolution processes (e.g. courts, arbitration, adjudication, expert determination) the third party arbiter imposes their interpretation of right and wrong on the subject matter of the dispute, a potentially limiting way of resolving disputes. In mediation, each side will need to make some concession to meet the needs of the other party (who otherwise would not settle). Not only does this create a win-win outcome, it also saves the parties much, legal fees and wasted resources in reaching this point. This is what can make mediation so effective in achieving solutions that meet the needs of the disputing parties.
The advantages of mediation can be outlined as follows:
Mediation is non-binding until the parties sign a settlement agreement (at which point becomes binding as any contract in law)
The key to any mediation is the fact that it is private and the process is confidential to the parties, except as they may agree. This enables the parties to talk frankly about the strengths and weaknesses of their arguments, and the other side’s ‘case’, without it prejudicing their position if the case does not settle and goes to court. Negotiations and communications within the process are generally — subject to some narrow exceptions — inadmissible in subsequent legal or other proceedings.
The mediator is neutral and his/her only interest is in providing the parties with their best chance of achieving a settlement to their dispute.
One of the key strengths of mediation is that the parties take control of the outcome and negotiate their own settlement, ‘owning’ the outcome. They can decide to withdraw from the process at any time. Any final settlements may take into account in other dispute resolution processes e.g in an ongoing business relationship opportunities for further work, or the offer of goods or services at the agreed cost, could be features. It may also take into account things that are totally outside of the dispute.
The role of the conciliator
Conciliation is best described as a settlement negotiation carried out between the disputing parties with the assistance of an independent neutral third party. In that respect, it is very similar to mediation but, whereas mediation is almost always viewed as a facilitative process, conciliation is seen as evaluative on the basis that if the parties fail to reach agreement the conciliator will put forward his/her own proposals for the settlement of the dispute in a the form of a Recommendation.
The advantages of conciliation
Conciliation has been traditional widely used in the Irish Construction Industry and it is included in almost all the standard Conditions of Contract, normally as a mandatory step prior to arbitration. It is a process which is entered into on a voluntary basis by the parties which means the process can be broken off at any stage and equally the parties are not obliged to accept a settlement. It is a confidential process carried out on a without prejudice basis which means that communications, documents etc. produced as part of the conciliation are inadmissible in subsequent proceedings. The parties are also free to reject the Recommendation normally within a specified time frame but if they do not do so it becomes final and binding.
The Society of Chartered Surveyors Ireland is currently in the process of setting up its Adjudicator’s Panel.
The role of a construction adjudicator
Adjudication is a Dispute Resolution process whereby an independent neutral third party (the adjudicator), decides the issues in dispute within a predetermined, usually very short, time limit which can be extended. The adjudicator’s decision is binding on the parties but it is not usually final at that time unless the contract so provides.
Adjudication may be contractual or statutory as in the UK where it was introduced by Part 2 of the Housing Grants, Construction and Regeneration Act 1996, most commonly associated with the resolution of disputes in the building and construction industry in the UK.
It must be noted, however, in this jurisdiction, there is no provision as of yet for Statutory adjudication although there are several instances of the process being used on a contractual basis.
The advantages of adjudication
The distinguishing feature of Adjudication is the tight time frame within which the
decision is provided. In the UK, this is normally twenty eight days from the time the dispute is referred to the adjudicator although there is provision to extend this.