UK: Dispute Strategies - A Checklist For Cost Effective Dispute Resolution

Last Updated: 20 March 2009

By Dr. Robert Gaitskell, Q.C., CEng

In a credit crunch every party strives for value for money. This applies particularly to dispute resolution. Whether you are adjudicating, arbitrating or mediating, you want the right decision at the minimum cost. How do you achieve that happy state? The answer is to have a clear strategy from the outset; not just from the beginning of the dispute, but from when you first get involved in the project. Here is a 5 point checklist to point you in the right direction.

  1. Avoid a dispute
  2. Right at the beginning, when you negotiate the contract, think about the things that are likely to go wrong. Is the specification clear enough so that you know what you are required to do? Do you understand the work scope and the standards required? Are the terms clear and fair? Are you using a standard form with which you are familiar? Avoid tinkering with the standard terms. A minor change in one clause may have an unexpected knock-on effect.

    Has risk been allocated to the party best able to deal with it? Have you got the money, management, men/women and machinery necessary to fulfil your obligations? At times like this when work is scarce it is tempting to put in an unrealistically low price to 'buy' the work. Resist that temptation. It will end in tears.

  3. Tiered dispute clause
  4. Does the contract contain a dispute resolution clause that offers a range of techniques for resolving disputes? Modern clauses usually start with negotiations between CEOs, then progress to mediation, followed by adjudication, with the possibility of an expert determination for specific technical or financial issues. Finally, there will be arbitration or, sometimes court litigation. For big projects there may well be provision for a dispute board. From the outset know what is available and make the best use of the options. Observe the time bars. You may need to give notices within short periods before you are able to use certain techniques.

  5. Strategic decision-maker
  6. As soon as there is an inkling of a dispute, appoint someone who will manage the dispute in just the way that you would manage a construction project. Often the money and time you will spend on the dispute will equate to what you would expend on a sizeable project. Don't try to run the dispute using a junior member of staff without the necessary experience and 'political clout' within your organisation. Once appointed, this will be your strategic decision-maker. He will project-manage the affair from cradle to grave. He will be responsible. The buck will stop with him. He must be up to it. He must know his way around the 'construction dispute world': the lawyers, the experts, the tribunals and appointing bodies. He must also have direct access to the top management in your organisation.

    He will have to take serious decisions about matters such as expenditure on outside professionals or about offers to settle. He must be sufficiently senior that he can do this promptly and confidently. If the worst happens, he must know when to throw in the towel and move to Plan B (and he must have a Plan B). He must be forceful enough to keep a firmly restraining hand on costs – they are likely to run away without it. Above all, he must simultaneously be focussed on the dispute, and what he wants to get out of it, while also looking for an opportunity to extract your company from that dispute – by negotiating a deal or, where things go wrong, withdrawing.

  7. Legal adviser
  8. One of the first challenges for your strategic decision-maker will be identifying and appointing the right legal adviser. Sometimes you are such a big organisation that you have an in-house lawyer who can handle it all – the pleadings, the submissions and the advocacy. Usually, however, an outside lawyer will need to be appointed. Use guides such as the Chambers Directory or the Legal 500, which list and comment on the best solicitors and barristers in each field. You can often find these directories in your local public library. There is also help on the internet.

  9. Tribunal

When choosing a tribunal, it is 'horses for courses'. It is invariably better for parties to agree a specific tribunal in whom they have confidence than to leave the choice to an appointing body. Are you in an adjudication, about some heating, ventilation and air conditioning (HVAC)? Then go for someone who knows what he or she is doing in that field. Often the best guide is personal recommendation.

In conclusion, a dispute is not to be lightly entered into. It can, where big sums are involved, make or break a company. Give it the attention it deserves.

First published in Building Magazine

The articles and papers published by Keating Chambers are for the purpose of raising general awareness of issues and stimulating discussion. The contents must not be relied upon or applied in any given situation. There is no substitute for taking appropriate professional advice.

Dr. Gaitskell is a practising Queen's Counsel in Keating Chambers, specialising in engineering/construction disputes, often of an international nature. He acts as arbitrator, adjudicator, mediator, dispute board member and expert determinator. He is a Chartered Engineer, a former Vice President of the Institution of Engineering & Technology (IET/IEE – Europe's biggest professional engineering body), and a former Senator of the Engineering Council. He is also a Fellow of both the Institution of Mechanical Engineers and of the IET. He is the Editor of The Engineers' Dispute Resolution Handbook (Thomas Telford).

For further information on how our members can assist you, please contact the Senior Clerks, John Munton and Nick Child, in the first instance, on +44 (0) 20 7544 2600. They and their teams of Clerks will be pleased to advise you on the member of Keating Chambers appropriate to your requirements.

© KEATING CHAMBERS

http://www.keatingchambers.com

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