What are the alternatives to Court proceedings and is Expert Determination the way forward for resolving building disputes?

Rebecca Rogers

There are various ways to resolve disputes rather than simply issuing a claim through the Courts, says Rebecca Rogers, associate at mfg.

Litigating through the Courts is not a quick process. There are lots of steps which are required to be taken (known as directions) and as such, significant costs may be incurred. Alternative Dispute Resolution (ADR) may therefore save time and the expense of litigation. ADR comes in a variety of binding and non- binding forms.

What forms of ADR are available?

There are many forms of ADR available to parties, including but not limited to negotiation, mediation and expert determination.

What is mediation?

Mediation is where the parties, with the assistance of a neutral third party mediator, identify the issues in dispute to see whether such issues can be narrowed and attempt to reach settlement in respect of the same. Parties still remain in control of any decisions made and settlement reached.

What claims/disputes is it useful for?

Most cases are suitable for mediation. Mediation can also be used to settle part of a dispute.

When is it not suitable?

Mediation is not however usually suitable for cases which involve a significant point of law in which a party may wish to refer to Court so that a Judge can decide on the point of law.

Are the Courts making mediation compulsory?

The Ministry of Justice has introduced compulsory mediation for small claims (valued up to £10,000).

Personal injury and unspecified money claims are expected to be added to the scheme at a later date.

However, for claims over £10,000 parties can still voluntarily agree to mediate.

What is expert determination?

Expert Determination is a method of alternative dispute resolution. It is most suitable for disputes which require a technical opinion or decision.

What claims/disputes is it useful for?

It is particularly useful for disputes where an expert or professional opinion or valuation is required on a technical matter or issue.

For example, whether or not goods supplied meet the required specification or implied terms as to quality.

When is it not suitable?

It is not suitable for claims which involve a substantial dispute as to fact or as to law.

Do you have to agree to use expert determination?

You should check the contract between the parties. Some contracts provide for expert determination as a means of resolving disputes rather than the issuing of Court proceedings. If there is no contract between the parties or the contract does not provide for expert determination you can still propose this to the other party as a means to resolving the dispute.

Is it binding?

Parties should agree that the expert’s decision is final and binding.

What are the advantages?

Often matters require expert opinion to decide on an issue or matter. Even when court proceedings have been issued, a party may request or a Judge may order that expert evidence is required.

Expert determination therefore allows parties to appoint an expert to decide on a technical issue or matter but without the need, expense or time involved in issuing Court proceedings.

Is expert determination useful for determining building disputes?

Building disputes are perfect for expert determination as the expert is able to assist on technical issues.

An expert can produce a binding decision as to whether or not the work carried out has been carried out with reasonable care and skill. The expert can also place an expert’s opinion as to the value of works done or the value of any rectification works required.

It is therefore a perfect means to resolve a building dispute!

For further information call Rebecca Rogers on 01562 820181 or email rebecca.rogers@mfgsolicitors.com