Creating a Best Practice Building Dispute Resolution System 2

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Thursday, September 17th, 2015
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Construction Dispute
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No one would argue that the cost of building dispute resolution is expensive, and many would say it is exorbitant if not prohibitive.

Further, building disputes can leave in their wake emotional and financial carnage – shattered dreams and sometimes broken homes, both descriptively and metaphorically.

Yet policy makers, despite the best of intentions, still have work to do when it comes around to the fashioning of modern day building dispute resolution environments in terms of best practice affordability and access to justice.

In defence of the legislature, it hasn’t been for want of trying. Some policy makers thought the solution would be to migrate jurisdictions such as residential disputation  from Courts to Tribunals. The jurisdictional migration was inspired by a desire to generate swifter delivery of justice for a lesser cost than the courts.

But there are a number of consumers and builders who lament that such hopes have not reached fruition. If this is correct, one is left to wonder why the migration of a jurisdiction need occur in lieu of the honing of the existing dispute resolution infrastructure by way of improvisation and the imbibing of best practice dispute resolution systemics and polemics.

If one were to re-engineer dispute resolution institutions to lower costs and speed up the dispensing of justice, what innovations could be introduced?

  1. The telling consideration is not whether the institution that serves as the dispute resolution abode is a court of law or a tribunal with regards to the delivery of more affordable and swifter justice. The telling consideration is what system generates the greatest utilitarian dividend. There is no compelling evidence to suggest tribunals inherently possess any superior capacity for cost and speed efficiencies than the courts, nor is there evidence that courts cost less and operate with more alacrity than tribunals.
  2. For fear of labouring the point, the paramount consideration is whether the dispute system within the particular institution generates an improved utilitarian dividend made possible by best practice systems, slick interlocutory regimes and conflict resolution circuit breakers.

Some ideas on innovations and changes to dispute resolution systemics

After having sought the views of a couple of colleagues, I penned some ideas for consideration, namely:

  1. To initiate proceedings it should be obligatory for the plaintiff to lodge a statement of claim that is typed and clearly enunciates the cause of action. There should be no impediment to the filing of the statement of claim online, as inevitably this will become the norm. The fashion of filling out forms, often in handwriting, is a little bit antiquated and is at odds with the on line world that is 2015.
  2. The statement of claim should simultaneously be dispatched to the respondent to save time.
  3. After receipt of the statement of claim, there should be a directions hearing post-haste, and one of the first orders should be for all parties to provide their lists of discoverable documentation. This will ensure that all material germane to the dispute is made available at the earliest opportunity so that from the get-go, pleadings can be tight, well-informed and highly evolved. All too often, I have been in proceedings where discovery occurs after the statement of claim and defence has been filed, and documents materialise late in the day that change the risk landscape of the case and the pleadings. Net effect: time and money lost.
  4. It follows that a timeline for the generation of a statement of defence should be set down by order at that directions hearing, but the statement of defence should be filed after discovery is completed.
  5. The next step should be mandatory mediation where all parties attend, including expert witnesses, to ensure that all key players are involved in the settlement dynamic. As everybody by then will have availed themselves of all documents and information germane to the ticklish issues, along with an understanding of the essential working tools of the dispute (i.e the statement of claim and the defence) the mediator will be best positioned to facilitate settlement.
  6. At the first directions hearing, there should also be an order that each party produce their expert reports at the mediation and a further order that the authors of the reports will attend.
  7. If the mediation fails, a new innovation should be introduced, namely that the dispute resolution institution will have accredited a panel of independent experts, and one of them will be nominated to provide technical expertise and opinion at the hearing.
  8. The expert after the failed mediation will avail him/herself of the technical reports and will have a limited opportunity to meet with the experts prior to finalising his/her own independent technical report. The parties will pay the expert on a 50/50 basis for his/her deployment. After the independent expert has finished his or her consultations with the client and their nominated experts, the rules will provide that the latter will retire themselves from any further involvement in the proceedings. They would be at liberty to stay in the background (i.e. to provide advice to their own clients) but they would have no more formal involvement in legal proceedings.
  9. At trial, the independent expert will provide his/her findings to the decision maker and there will be no further resort to other expert opinion. This innovation will:
  • Cut the cost of expert evidence by 50 per cent
  • Shorten the length of the duration of expert testimonies significantly
  • Guarantee impartiality
  • Improve the quality of expert testimony assuming that the accreditation process is robust and rigorous
  • Reduce cross examination time profoundly, as there will be no need for a barrister to cross examine client retained experts

For many years, it has been the fashion for the advocates appearing before the decision makers – be they judges or tribunal members – to have instructing solicitors. Increasingly, advocates – be they solicitor advocates or members of the bar – are appearing by themselves without the assistance of instructing solicitors. Some critics of the deployment of instructing solicitors have opined that in some cases instructors perform a role that is little more than a glorified secretarial service. It has also been common for senior advocates to have a junior counsel assisting them at trial. These conventions are being revaluated through the lenses of value for money sensibilities as the deployment of senior advocate, junior advocate and instructing solicitor adds significant cost to the running of a case, and the skeptics are saying ‘is this really necessary?’

The emerging orthodoxy is that the advocate is increasingly appearing by him or herself without junior counsel and without an instructing solicitor. Obviously in the very largest of cases, different forces are at play where the bolstering of the advocacy team will be justifiable, but this is by no means the case with run of the mill construction law cases.

One need not generate rules that impose restraints on human resources advocacy, but decision makers may be inclined to question the need to have a flank of advocates in a garden variety building dispute. If a more parsimonious approach to the number of advocates deployed at trial (i.e. a norm where one advocate appears vis a vis a junior and or instructing solicitor) the cost of running a trial will return to the ranks of semi-affordability.

One thing is for sure: if the cost of construction dispute resolution does not diminish, access to justice will further diminish and no one will be the better for it.

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  1. Mark Whitby

    Kim,

    Aren't Item Suggestions 7,8,9 just adjudication? Adjudication is permissible right now if both parties agree. Aren't these items just forcing adjudication on people? Such a system was discarded in the late 1980's due to the public outcry of home owners who suffered under that system

    • kim lovegrove

      Thanks for the time taken to comment Mark, but no adjudication is not at play here. One of the seminal differences in the above proposal is that the experts firstly do not issue a binding determination, that remains the sole domain of the decision maker, be he or she, judge or tribunal member. Secondly the expert will have been accredited by the Court or the Tribunal rather than an ANO. Further the system that was discarded in the late eighties was arbitration not adjudication. Arbitration came under the auspices of the Commercial Arbtration Act and adjudication still operates extensively under the security for payment acts of parliament that tend to govern payment arrangements between builders and sub contractors. Arbitration was indeed dispensed with in the commercial setting because of the consumer outcry. There were 2 serious limitations with arbitration 1. You had to pay for the arbitrator whereas the Courts and Tribunals do no require the parties to pay for the decision makers. 2 With arbitration only the parties to the contract can utilise arbitration and one cannot join other parties in the dispute; a serious logistical limitation.