Building Dispute-Alternative Dispute Resolution Hearing
Discussion
I have reluctantly agreed to attend in February, an Alternative Dispute Resolution hearing, the same hopefully to settle a long running building construction dispute with a building contractor.
I say reluctantly, since i believe the other party's solicitor is just going through the legal process, possibly to note what line of arguments, evidence I will offer, the same to possibly be able to address at any future court hearing etc.
What experiences have posters had through attending Alternative Dispute Resolution hearings, what are the pros and cons of attending the same, and how should I both treat and conduct myself at the hearing.
I say reluctantly, since i believe the other party's solicitor is just going through the legal process, possibly to note what line of arguments, evidence I will offer, the same to possibly be able to address at any future court hearing etc.
What experiences have posters had through attending Alternative Dispute Resolution hearings, what are the pros and cons of attending the same, and how should I both treat and conduct myself at the hearing.
Yep, been there and done that.
1. Work out what your worst case position is before you start, ie, Legal costs to get to court, lose on the day, pick up the tab for the other sides legal costs, still have to pay to “fix” whatever the problem is.
2. Be prepared to compromise.
3. Take your Solicitor and use them as the balanced view.
4. Compromise on Value/time span for repayment if necessary.
In my case we had already had Court Directions to use a Joint expert witness (yours/theirs aren’t impartial, a Joint view is) and the report was clear cut in my favour, I still compromised a bit on the value and allowed repayment over a longer time than I wanted (but a time span that I knew the builder could actually afford - no point winning and not getting a penny of it).
You shouldn’t have any “killer info that you don’t want to show” - get it shown/disclosed and force the point that your will win anyway, if it is genuinely “killer info” then they will be more likely to concede/compromise.
Don’t have a “for the principle of it” mentality either.
Rgds
Jim
1. Work out what your worst case position is before you start, ie, Legal costs to get to court, lose on the day, pick up the tab for the other sides legal costs, still have to pay to “fix” whatever the problem is.
2. Be prepared to compromise.
3. Take your Solicitor and use them as the balanced view.
4. Compromise on Value/time span for repayment if necessary.
In my case we had already had Court Directions to use a Joint expert witness (yours/theirs aren’t impartial, a Joint view is) and the report was clear cut in my favour, I still compromised a bit on the value and allowed repayment over a longer time than I wanted (but a time span that I knew the builder could actually afford - no point winning and not getting a penny of it).
You shouldn’t have any “killer info that you don’t want to show” - get it shown/disclosed and force the point that your will win anyway, if it is genuinely “killer info” then they will be more likely to concede/compromise.
Don’t have a “for the principle of it” mentality either.
Rgds
Jim
Happy Jim said:
Yep, been there and done that.
1. Work out what your worst case position is before you start, ie, Legal costs to get to court, lose on the day, pick up the tab for the other sides legal costs, still have to pay to “fix” whatever the problem is.
2. Be prepared to compromise.
3. Take your Solicitor and use them as the balanced view.
4. Compromise on Value/time span for repayment if necessary.
In my case we had already had Court Directions to use a Joint expert witness (yours/theirs aren’t impartial, a Joint view is) and the report was clear cut in my favour, I still compromised a bit on the value and allowed repayment over a longer time than I wanted (but a time span that I knew the builder could actually afford - no point winning and not getting a penny of it).
You shouldn’t have any “killer info that you don’t want to show” - get it shown/disclosed and force the point that your will win anyway, if it is genuinely “killer info” then they will be more likely to concede/compromise.
Don’t have a “for the principle of it” mentality either.
Rgds
Jim
Good advice. 1. Work out what your worst case position is before you start, ie, Legal costs to get to court, lose on the day, pick up the tab for the other sides legal costs, still have to pay to “fix” whatever the problem is.
2. Be prepared to compromise.
3. Take your Solicitor and use them as the balanced view.
4. Compromise on Value/time span for repayment if necessary.
In my case we had already had Court Directions to use a Joint expert witness (yours/theirs aren’t impartial, a Joint view is) and the report was clear cut in my favour, I still compromised a bit on the value and allowed repayment over a longer time than I wanted (but a time span that I knew the builder could actually afford - no point winning and not getting a penny of it).
You shouldn’t have any “killer info that you don’t want to show” - get it shown/disclosed and force the point that your will win anyway, if it is genuinely “killer info” then they will be more likely to concede/compromise.
Don’t have a “for the principle of it” mentality either.
Rgds
Jim
View it as a chance to extract yourself from a dispute. It’s not the occasion to show how tough/principled/stubborn you are.
Generally, the successful mediations I’ve been to are ones where both sides are equally pissed off (and I mean that) at the agreed deal.
Jim’s points pretty much cover it, I would add that you need to know the costs of any remedial work. It may well form the basis of any compromise. There is no point accepting £1000, if it is going to cost £10,000 to employ a third party to fix.
Without knowing specifics, much may depend on the original contract and how sub-contractors are treated within it - that was Joe Plumbers fault, my work is perfect, you need to get him to fix it.
I have just gone through a similar experience in France. Despite most of my working life being in Construction, with special knowledge of UK contracting law, I was pleased I used a local lawyer. He just stuck at it despite brickbats from several parties opposing my claim, but we eventually won by being well prepared and documented. The court appointed an independent expert, but the other parties still refuted some of his summaries, but the judge rejected their viewpoints.
Whatever, don’t just treat it as if you are going for a friendly chat to get an independent viewpoint.
Without knowing specifics, much may depend on the original contract and how sub-contractors are treated within it - that was Joe Plumbers fault, my work is perfect, you need to get him to fix it.
I have just gone through a similar experience in France. Despite most of my working life being in Construction, with special knowledge of UK contracting law, I was pleased I used a local lawyer. He just stuck at it despite brickbats from several parties opposing my claim, but we eventually won by being well prepared and documented. The court appointed an independent expert, but the other parties still refuted some of his summaries, but the judge rejected their viewpoints.
Whatever, don’t just treat it as if you are going for a friendly chat to get an independent viewpoint.
catweasle said:
Is that intended to be helpful? ADR is a specialised area of law. There is no such thing as an ADR hearing. There are adjudication hearings, or arbitration hearings. Or mediation.Some are binding. Some are not. There are many different sets of rules.
This poster has started numerous threads about his disagreement with a builder that he doesn't want to pay. He's been given plenty of good advice already. We've had threads about solicitors. And about barristers. And about surveyors. None of which he wants to pay for. If he's heading down the road to arbitration or adjudication without legal advice or representation, he's going to learn a painful (and expensive) lesson.
But he's been told that. Several times.
hutchst said:
Is that intended to be helpful? ADR is a specialised area of law. There is no such thing as an ADR hearing. There are adjudication hearings, or arbitration hearings. Or mediation.
Some are binding. Some are not. There are many different sets of rules.
This poster has started numerous threads about his disagreement with a builder that he doesn't want to pay. He's been given plenty of good advice already. We've had threads about solicitors. And about barristers. And about surveyors. None of which he wants to pay for. If he's heading down the road to arbitration or adjudication without legal advice or representation, he's going to learn a painful (and expensive) lesson.
But he's been told that. Several times.
Have looked cant find them got a link? Please dont say this is all over some bubbling paint! Some are binding. Some are not. There are many different sets of rules.
This poster has started numerous threads about his disagreement with a builder that he doesn't want to pay. He's been given plenty of good advice already. We've had threads about solicitors. And about barristers. And about surveyors. None of which he wants to pay for. If he's heading down the road to arbitration or adjudication without legal advice or representation, he's going to learn a painful (and expensive) lesson.
But he's been told that. Several times.
hutchst said:
Is that intended to be helpful? ADR is a specialised area of law. There is no such thing as an ADR hearing. There are adjudication hearings, or arbitration hearings. Or mediation.
Some are binding. Some are not. There are many different sets of rules.
This poster has started numerous threads about his disagreement with a builder that he doesn't want to pay. He's been given plenty of good advice already. We've had threads about solicitors. And about barristers. And about surveyors. None of which he wants to pay for. If he's heading down the road to arbitration or adjudication without legal advice or representation, he's going to learn a painful (and expensive) lesson.
But he's been told that. Several times.
Was intended for the assistance of the OP, I hadn't even scrolled as far as your post at that point.Some are binding. Some are not. There are many different sets of rules.
This poster has started numerous threads about his disagreement with a builder that he doesn't want to pay. He's been given plenty of good advice already. We've had threads about solicitors. And about barristers. And about surveyors. None of which he wants to pay for. If he's heading down the road to arbitration or adjudication without legal advice or representation, he's going to learn a painful (and expensive) lesson.
But he's been told that. Several times.
As well as explaining all the various versions of ADR it actually does have a particular section relating to Construction Industry Adjudication.
I have seen his previous threads hence why I limited my post to that book (very good btw) and didn't expand on my own personal experiences as requested by the OP.
Edited by anonymous-user on Tuesday 31st December 15:46
hutchst said:
Is that intended to be helpful? ADR is a specialised area of law. There is no such thing as an ADR hearing. There are adjudication hearings, or arbitration hearings. Or mediation.
Some are binding. Some are not. There are many different sets of rules.
This poster has started numerous threads about his disagreement with a builder that he doesn't want to pay. He's been given plenty of good advice already. We've had threads about solicitors. And about barristers. And about surveyors. None of which he wants to pay for. If he's heading down the road to arbitration or adjudication without legal advice or representation, he's going to learn a painful (and expensive) lesson.
But he's been told that. Several times.
Much of this is true. The last construction arbitration I was involved with had multiple hearings, involving presentation of information before reaching a final decision. Barristers were engaged on both sides. It is not always a quick or cheap process. We believed we had a clear case but still engaged professional help. The sums involved may have been a little larger than here, but the point stands you can't do this on the cheap unless you are expecting to lose. Some are binding. Some are not. There are many different sets of rules.
This poster has started numerous threads about his disagreement with a builder that he doesn't want to pay. He's been given plenty of good advice already. We've had threads about solicitors. And about barristers. And about surveyors. None of which he wants to pay for. If he's heading down the road to arbitration or adjudication without legal advice or representation, he's going to learn a painful (and expensive) lesson.
But he's been told that. Several times.
surveyor said:
OP is on a hiding to nothing. I’d almost like to know the detail as he seems incapable of taking advice, and I suspect is the nightmare customer. / client.
If this is the guy I recall from other threads I think even after he'd engaged a barrister he was told to settle & move on ASAP. OP another tip from my last construction arbitration, the arbiters don't like having their time wasted with badly prepared/supported cases or for that matter disproportionate claims. In my case we had offered to pay 2.5 for something, they had claimed for 1200, when the original contract value was 750. We could easily prove the market price was 2.5. How it got as far as it did was beyond me. It was fairly swiftly decided on the day. It is very difficult to advise without sight of the contract, supporting docs and contractual documentation relating to the dispute.
On general principles, others have already covered the key points;
- Prepare thoroughly and engage experienced, insured advisors
- Enter the process with a clear negotiating strategy in place, including your ultimate bottom line
- Do not focus on “winning on principle” but on reaching a swift and workable settlement
- Listen to your advisors, who will have seen it all before and be dispassionate about the outcome
- Do not play procedural games
On general principles, others have already covered the key points;
- Prepare thoroughly and engage experienced, insured advisors
- Enter the process with a clear negotiating strategy in place, including your ultimate bottom line
- Do not focus on “winning on principle” but on reaching a swift and workable settlement
- Listen to your advisors, who will have seen it all before and be dispassionate about the outcome
- Do not play procedural games
hutchst said:
This poster has started numerous threads about his disagreement with a builder that he doesn't want to pay. He's been given plenty of good advice already. We've had threads about solicitors. And about barristers. And about surveyors. None of which he wants to pay for. If he's heading down the road to arbitration or adjudication without legal advice or representation, he's going to learn a painful (and expensive) lesson.
But he's been told that. Several times.
I have just looked back over his previous threads. The one professional you omitted was appointing a project manager in the first instance. But he's been told that. Several times.
So it seems that he has appointed a contractor on a verbal agreement, for a fairly complex HMO refurbishment in an locality that he is not familiar with.
Oops!
Thank you all for your replies.
The hearing in February is a mediation hearing, and i have taken both a solicitor's and barrister's advice, the latter which I will be engaging if the case proceeds to court.
Whilst I of course recognise the benefit of obtaining legal advice, it nevertheless surprises me how differing that advice can be, I believe however there is no substitute for seeking personal experiences from the many differing professional posters on PH.
As a footnote, I did engage a project manager/surveyor, who turned out to be acting in the interests of the builder, and not his client, myself.
The hearing in February is a mediation hearing, and i have taken both a solicitor's and barrister's advice, the latter which I will be engaging if the case proceeds to court.
Whilst I of course recognise the benefit of obtaining legal advice, it nevertheless surprises me how differing that advice can be, I believe however there is no substitute for seeking personal experiences from the many differing professional posters on PH.
As a footnote, I did engage a project manager/surveyor, who turned out to be acting in the interests of the builder, and not his client, myself.
Wings said:
Thank you all for your replies.
The hearing in February is a mediation hearing, and i have taken both a solicitor's and barrister's advice, the latter which I will be engaging if the case proceeds to court.
Whilst I of course recognise the benefit of obtaining legal advice, it nevertheless surprises me how differing that advice can be, I believe however there is no substitute for seeking personal experiences from the many differing professional posters on PH.
As a footnote, I did engage a project manager/surveyor, who turned out to be acting in the interests of the builder, and not his client, myself.
Assuming that individual was a Chartered Surveyor, have you made a complaint to the RICS?The hearing in February is a mediation hearing, and i have taken both a solicitor's and barrister's advice, the latter which I will be engaging if the case proceeds to court.
Whilst I of course recognise the benefit of obtaining legal advice, it nevertheless surprises me how differing that advice can be, I believe however there is no substitute for seeking personal experiences from the many differing professional posters on PH.
As a footnote, I did engage a project manager/surveyor, who turned out to be acting in the interests of the builder, and not his client, myself.
Why are you attending mediation unrepresented? This is your chance to end the matter without the time, worry, risk and cost of going to court.
Based on your previous threads on this and your attitude here, it doesn't sound like you're approaching mediation as an opportunity to compromise and end this. It sounds more like you want to have been seen to have done it so it can't be held against you for not doing it.
Based on your previous threads on this and your attitude here, it doesn't sound like you're approaching mediation as an opportunity to compromise and end this. It sounds more like you want to have been seen to have done it so it can't be held against you for not doing it.
He was not a Chartered Surveyor, and was therefore not RICs registered.
In 30 plus years of residential property ownership, it was the first time of carrying out a major renovation project, and at the same time the property was not on my home turf, therefore online web site with local recommendation.
May not occur in a major town, but in the rural area of Devon, builder, surveyor and 50 miles away solicitor that I later approach, all had previous working relationships, conflict of interests etc.
In 30 plus years of residential property ownership, it was the first time of carrying out a major renovation project, and at the same time the property was not on my home turf, therefore online web site with local recommendation.
May not occur in a major town, but in the rural area of Devon, builder, surveyor and 50 miles away solicitor that I later approach, all had previous working relationships, conflict of interests etc.
janesmith1950 said:
Why are you attending mediation unrepresented? This is your chance to end the matter without the time, worry, risk and cost of going to court.
This all day. Seriously get yourself represented at this mediation.As the saying goes "A man who represents himself has a fool for a client"
janesmith1950 said:
Why are you attending mediation unrepresented? This is your chance to end the matter without the time, worry, risk and cost of going to court.
Based on your previous threads on this and your attitude here, it doesn't sound like you're approaching mediation as an opportunity to compromise and end this. It sounds more like you want to have been seen to have done it so it can't be held against you for not doing it.
It is my intentions to follow both your's, BV's and others advice, that is to attempt to bring the matter to a satisfactory conclusion at the mediation hearing. Following counsel's advice, I issued a partial counterclaim, the same that would be financially below £50k, that would allow the claim to be allocated to the Fast Track.Based on your previous threads on this and your attitude here, it doesn't sound like you're approaching mediation as an opportunity to compromise and end this. It sounds more like you want to have been seen to have done it so it can't be held against you for not doing it.
What however did cause me some concerns, was that counsel, barrister did make referral to a case he acted for the defendant, where the other side's solicitor, same in my case, took the case all the way to the county court, where both parties ended up with large legal bills.
It was the above information, that made me sort out possibly other person/s who had experience of going through mediation hearings.
Thank you for your usual helpful and sound advice.
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