[ Feature: Dispute Resolution ]
as the mediator does not sit in judgment. Any outcome will only be binding if agreed by both parties otherwise the matter can proceed to arbitration or litigation.
What is the usual way?
Adjudication is far and away the most popular means of resolving disputes. While introduced in the 1996 Construction Act as a ‘quick and cheap’ way to consider relatively minor differences, it has now burgeoned into the major disputes arena. An industry procedure intended to be conducted by
industry professionals with technical understanding, it is now seen by lawyers as a lucrative area and the original intent has been overtaken with the frequent involvement of solicitors and counsel.
How to avoid a dispute
Disputes take on different perspectives depending on whether you are making or defending an allegation. ECA registered members can find themselves in either position, either when subcontracting work to another or when employed by another. However the advice applies to both situations – unless you are looking to create a dispute and maximise a claim, an increasingly frequent ploy in the current market.
Dos and don’ts to avoid disputes
1. Understand the job.
n What have you got to do? n Refer to all the enquiry documents on which your price is based.
n Are you responsible for specifying any equipment or material?
n Are you required to undertake design or take responsibility for somebody else’s design?
n Do you have to provide a collateral warranty? n Have you got uninterrupted access to your work? n Is your programme dependent on others’ progress? n Do you have stipulated commencement and completion dates?
n Is making good an associated builder’s work clearly allocated to you or another?
n Are you being asked to accept variations to the scope once you have signed the contract, and is there a mechanism for identifying and valuing these?
n Is retention to be held? If so how much and for how long? Check if you can offer a retention bond in lieu.
n Are you expected to allow cash discounts to your payments?
n Have you checked the credit rating of your client (for non domestic works) or asked for an up front mobilisation payment (usually from a domestic consumer)?
2. Ensure that the scope of work, price and conditions of agreement are in writing.
n This can be a very simple document based on ECA’s standard terms and conditions, which you provide to your client, or potentially a very complex contract agreement supplied by your client. If your agreement is not in writing, at the moment it will not be covered by the Construction Act*.
n Any documents supplied to you should be carefully
Summer 2010 ECA Today 49
Disputes take on different perspectives depending on whether you are making or defending an allegation
SHUTTERSTOCK
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