Should always be considered in the first instance, so as to avoid the time, ’resource sink’, and cost issues of arbitration or litigation.
Various forms of Alternative Dispute Resolution (ADR) are available as a means to expedite resolution of disputes in a prompt and low-cost manner. Most importantly, when disputes are solved using Mediation, the parties to the dispute are able to resolve the matter(s) confidentially and face-to-face. In many cases, the relationship between the parties is preserved and subsequently enhanced. That contrasts markedly to litigation, (legal and court proceedings), whereby the end result is generally bitterness and destruction of business relationships.
A private, informal and flexible, but carefully structured process whereby the mediator ensures that discussions are conducted in a confidential, respectful and productive fashion.
A less known, but formal option for privately resolving technical issues that are in dispute.
Nationally Accredited Mediator (NMAS) and is qualified with a Diploma in Law in addition to his 37+ years of addressing engineering and contractual solutions. He is a Professional Member of the Resolution Institute. He is also on the Immediation Panel. If in-person mediation is impossible or impractical, online mediation platforms such as Immediation provide an option to solve disputes rapidly and economically.
With more than 37 years of engineering, technical, management, commercial and contract experience, Bruce provides a practical and pragmatic means by which to resolve disputes promptly, at low cost and with the likelihood of amicable outcomes.
It normally follows direct contract negotiations between the parties by correspondence or meetings. Rarely will a further in-person meeting between the parties alone resolve the issues, as each party has normally established their ‘position’ by that stage, and human nature is for them to hold that ground as best they can.
The options for ADR include:
Arbitration and litigation are both very expensive courses of action and they are both adversarial, whereby each party states their case to an independent umpire (judge or arbitrator), and the umpire makes his or her ruling. Either approach may take a long duration (potentially years), consumes extensive resources from within each party, and incurs very significant legal expense. The outcome, which always rests upon legal (contractual) rights only, may vary from favouring of one party, to some proportionate outcome. Even when one party ‘wins’, they will never recoup all of the costs invested in the dispute.
Formal disputes consume a huge amount of time in preparing and reviewing documentation, preparing affidavits, attending meetings with lawyers, and attending hearings, thus taking company personnel away from their otherwise productive activities. Significant collateral expense is frequently incurred for the engagement of expert witnesses.
Supply and/or construction contracts tend to include dispute resolution clauses that typically ‘escalate’ along the following path:
Direct discussion or negotiation between the parties
Mediation and/or Expert Determination
Arbitration or Litigation
The parties need to pay sufficient attention to dispute resolution aspects when establishing a new contract, The more critical issues to consider are:
In establishing new contracts, and during the early phases of managing disputes, personnel need to be cognisant of the variety of dispute resolution options that are available and which may resolve their dispute in the shortest time, at the smallest cost, and with the lowest possible amount of disruption to their business and its reputation.
In drafting contracts, and more specifically in addressing disputes at an early stage, the parties should be mindful of mechanisms available that will minimise effort, cost and time, maintain privacy, and at the very least, minimise the number of specific matters which may proceed further to arbitration or litigation.
Mediation or Expert Determination should always be considered in the first instance.