Alternative Dispute Resolutions (ADR)
Thanks for Jon Miller LLB, MSc, Solicitor (construction law), FCIArb, Fellow of Chartered Institute of Arbitrators, Member of the Technology and Construction Court Solicitors Association (TeCSA), CIArb Accredited Adjudicator.
Jon Miller's experience covers dispute resolutions, litigation for developers, employers, contractors, sub-contracts and consultants. He also acts as an Advocate in court before Arbitrators and represents clients before Mediators. His areas of work includes disputes involving roads, harbours warehouses, factories, tunnels, road schemes, housing schemes and office buildings. He has been involved in a broad range of disputes, mediations, expert determinations, adjudications, non-continuous matters. He has both domestic and international clients.
Jon Miller sits on the board of the Chartered Institute of Arbitrators, London Committee. He also regularly lectures at the Institute of Electrical Engineers , Building Research Establishment, Chartered Institute of Building Services Engineers and the Royal Institution of Chartered Surveyors and he has lobbied the House of Lords for the construction industry during the passage of the Housing Grants Act.
Alternative Dispute Resolutions (ADR)
Jon Miller started by explaining that the courts really do not want this type of property / construction disagreement in court, which is all part of the Civil Procedure Rules 1999. ADR is a way to ensure that as much as possible is dealt with before it gets to court.
The following looks at:
• Discussion and negotiation
• Early neutral evaluation
ADR in its basic form takes negotiation. A common approach is positional negotiation, where one party doubles the sum they want and the other halves the amount named by the other party! Jon Miller advised that often, in his experience, clients do not have a full understanding of what they want and what they can have. He also touched on the other positional negotiation of a line in the sand' with a take it or leave it approach.
Jon Miller advised that negotiations should be with the person that makes the decision (the organ grinder not the money). Make sure the person has the authority to negotiate and ultimately understand who has the authority to sign the cheque.
ENV (early neutral valuation)
This is a process of ADR carried out by retired Judges and retired Surveyors, where in theory the parties want to solve the dispute. This process can limit the time and money spent and it can be over and done with in a morning.
A mediator doesn't make a decision he helps people think, or bash their heads together. A particular incentive of mediation is that typically during a court case you only get back about two thirds of the legal costs. It has the benefits that anything you say cannot be used against you and you can talk freely to settle the dispute(s) and at any time either party is free to walk away. Indeed, a good mediator utilises the willingness, or otherwise, of the parties to bring about a decision.
Typically there will be a mediation room and also private rooms into which each party can have discussions on various issues; the mediator moving freely between the rooms, but only able to pass on any information with the consent of the parties.
Disputes with the NHS were found to, in most cases, just want an apology. BR and other large companies often use mediation as a way of coming to an agreement without the glare of journalists; as you can't stop journalists going to court!
Terms to look out for
Are we agreeing liability or are we agreeing liability in quantum? Quantum refers to financial matters, i.e. are we accepting liability and just need to discuss how much a cheque will be, or won't be?
The other additional advantage of mediation is that it can produce win, win situations, where an ongoing relationship can continue, for example a pay off of X amount and 30% off ongoing local property deals, etc.
ADR, a delaying tactic
Jon Miller also spoke about the problem that it can just sometimes be a process that the parties are going through and it takes two to tango. He commented that he was aware of cases where parties hadn't even initially been able to agree where to have their mediation and that sometimes a party is holding out over a period of time, to the point where the other party will just accept something to resolve the matter.
With arbitration you affectively have a private Judge. Under the Arbitration Act 1996 Arbitrator's fees are in the hundreds of pounds per hour (interestingly, approximately two thirds of them are Chartered Surveyors). Typically, it will take a full week. It has the benefit of keeping the journalists out and is a private settlement and is cheaper.
Jon Miller also had a few words to say on dilapidations. Firstly, that the landlord has six years to serve the Dilapidations Schedule, although the Protocol recommends 56 days, and his main comment was to read the lease; it all depends upon what the lease says.