Given the need to deliver fair outcomes to all parties in a cost effective manner without undue delays, the adoption of best practice principles in building and construction dispute resolution procedures is of paramount importance throughout Australia.
So what does ‘best practice’ look like? Here are my thoughts:
1. Fast, cost effective, well resourced.
Regardless of the medium in which they are heard, building disputes must not drag on for unduly long periods, should not be any more costly than is necessary and must be heard by decision makers who understand building disputes and are suitably qualified from a legal perspective to ensure fair outcomes.
The point about cost is one reason why arbitration – which forces parties involved to pay for arbitrators and does not allow for the consolidation of multi-party disputes – has largely fallen out of favour in residential building disputes and indeed is no longer allowed in a number of states in proceedings concerning the residential sector of the industry.
2. Tribunals are not necessarily better
Regardless of whether we are talking about a court or a tribunal, the bottom line is that any effective dispute resolution forum must be adequately resourced, have dedicated building lists that allow for consolidation of multi-party disputes and ideally, have decision makers who specialise in building disputes.
3. Make mediation mandatory
Mediation is quick, cost effective and generally desirable. Genuine efforts to resolve disputes in this way as early as possible should not be optional.
4. Jointly appointed experts
In recent years, there has been an increasing level of concern about outcomes being unduly influenced by expert witnesses hired by plaintiffs, some of whom it is felt unduly exaggerate the case of those who hire them.
To combat this, experts should be jointly appointed and remunerated and should be chosen from court or tribunal nominated panels. That way, he or she would serve the court, not the individual party who pays them.