Construction and Engineering Disputes
Paul is a specialist mediator in construction and engineering. The majority of his appointments are for resolution of disputes in the construction industry.
Paul seeks solutions to conflict by using dialogue, reconciliation, authenticity, flexibility of the mediation process, leadership, imagination and his own extensive industry experience. Paul has worked at every level in construction from working directly on-site to director which, together with his study of construction law and his continued professional development enables him robustly to reality test parties, allowing them to focus clearly upon solutions.
Paul mediates all types of issues including:
- Design issues
- Final accounts
- Construction defects
- Variations/change/compensation events
- General contractor claims
- Subcontractor claims
- Project management services
- Performance issues
- Scheduling and timing
- Quality control
- Cost overruns and delay; and
- Insurance based claims against professionals
Construction disputes, Pre-Action Protocol and Mediation
The Pre-Action Protocol for Construction and Engineering disputes came into force on October 2, 2000. The purpose of the Protocol as described by the 2nd Edition of the Technology and Construction Court Guide as being:
“…to encourage the frank and early exchange of information about the prospective claim and any defence to it; to enable the parties to avoid litigation by agreeing a settlement of the claim before commencement of proceedings; and to support the efficient management of proceedings where litigation can be avoided”.
Lord Justice Jackson in his ‘Review of Civil Ligation Costs: Final Report’ reported that Alternative Dispute Resolution (ADR), particularly mediation, has a vital role to play in reducing the cost of civil disputes, by fomenting the early settlement of cases. Jackson LJ sets out that parties should be encouraged to settle their disputes before reaching the court door. If parties fail to act reasonably and proportionately in actively seeking to settle their dispute, they may find that the court will be increasingly willing to penalise their conduct by making an adverse cost order that could include:
- Depriving the party of costs even if they are successful in litigation;
- Ordering them to pay some or all of the others side’s costs even if they are successful in the litigation;
- Ordering them to pay costs on an indemnity basis;
- Ordering a higher rate of interest to be paid on damages awarded; and
- Depriving a party of interest on damages awarded by the court.
It is clear that mediation is now seen as an important part of the civil litigation process. There have been a number of developments by the judiciary to encourage people to mediate their disputes. The courts have not actively forced parties to mediate however, refusing to do so may come with costly consequences.
For a detailed explanation of the Jackson Reforms and how they affect the mediation of construction disputes ‘The Jackson ADR Handbook’ is highly recommended.