“We have a dispute. We need to resolve it quickly and flexibly. We are not really sure how”.
We are going to be hearing this a lot as the country emerges from the COVID-19 shutdown.
Court proceedings are an option but can be expensive and take time. The Courts are going to struggle to process cases as we emerge from lockdown.
The three main alternatives to the Courts are listed below. Each of these can be fairly quick and priced to avoid high expense.
Mediation
If both parties agree, and want to co-operate with each other in resolving the dispute, mediation can be very efficient.
I can act as a mutual facilitator. The process can be concluded in weeks or days. It can be done by social media, or through a telephone conference, or with suitable social distancing, as restrictions are eased.
I conducted the first telephone mediation for The Royal Institution of British Architects.
Once a solution is found, a binding agreement is made in writing. The parties may have to e-sign the agreement.
Arbitration
There may be an agreement between the parties requiring them to arbitrate. But if there isn’t, they can still agree to arbitrate. Arbitration is a very flexible process. Written statements can be served quickly, necessary documents produced, and the arbitration concluded by an award within weeks – sometimes within days. If the matter is complicated and the parties want more time – this can be agreed.
Adjudication
Adjudication is often used to resolve disputes under construction contracts but it can be applied more widely. It is a fast-track procedure, often based on written submissions. But there can be a virtual or real meeting and hearing. The adjudicator makes a Decision which, provided it is valid, will be enforced through the Courts if necessary – again, in a fast-track procedure.
Which route is best?
Previously and normally, the parties’ legal advisers will tell them which route to take. These are unprecedented times. Provided the parties agree and request it in advance, a dispute resolver, in the present circumstances of COVID-19 virus, could at least suggest a route for the parties to choose and agree upon.
Fixed price tailored packages
A fixed price can readily be agreed if the parties are clear what they want.
A telephone mediation, based on an exchange of written statements, might be agreed at £500 each plus VAT.
For adjudications, the parties can keep the fees down by agreeing not to have reasons – or agreeing the reasons are limited to, say, no more than four sheets of A4 paper. A simple adjudication over compliance with notice requirements under a building contract could be adjudicated for the low thousands of pounds.
Again, with arbitration, if the parties will agree a fixed timescale, a limit on submissions and the amount of documents and a short statement of reasons, it is certainly possible to agree on a fast-track arbitration for £4,000-5,000 a party plus VAT.
In the case of adjudication and arbitration, the adjudicator or arbitrator will decide which party ultimately pays his fees.
My experience:-
- Hugely experienced dispute-resolver
- Arbitrator, mediator and adjudicator
Arbitrator
Chartered arbitrator of approximately 20 years’ standing. I have made over 100 awards. I am a Member of Faculty for the CIArb – so I can train arbitrators and have set exams for future arbitrators. I receive appointments from the CIArb the Law Society and the Institute of Chartered Accountants and from many other panels.
Construction adjudicator
I am on five national panels. I have made Decisions in between 100-200 adjudications. I have trained adjudicators for the RIBA. I lecture and write articles extensively on adjudication.
Mediator
I am a CEDR accredited mediator. I am on the Law Society and RIBA List of Mediators. I have mediated over 100 matters, of which only five did not settle.
