Alternative Resolution to Construction Defects in Ireland | Building Defects Ireland
Alternative dispute resolutions are a means of providing a solution to a dispute in a way that meets the needs of the parties and conforms to fundamental principles of justice.
The immediate question that arises is – ‘Can a construction defects dispute be resolved by agreement before reverting to the Courts?’
There are various means of resolution which shall be detailed below, and will include the key objectives and advantages of same.
“ Alternative dispute resolutions (ADR’s) are an integral part of the policies aimed at improving access to justice. In effect, they compliment judicial procedures, insofar as, the methods used in the context of ADR’s are often better suited to the nature of the dispute involved. ADR’s can help parties enter into dialogue when this was not available before.”
SOURCE: Law Reform report: Alternative Dispute Resolution: Mediation and Conciliation. 2010 (www.lawreform.ie)
Arbitration in relation to Construction Defects in Ireland
Originally, arbitration in relation to construction defects was a process used to avoid the heavy costs involved in litigation. However, it has now become as bad, with disproportionate costs to the size of the dispute, with proceedings being slow, uncertain and very expensive means of dispute resolution.
Independent Expert Determination
This process involves an independent third party acting as an expert rather than a judge or arbitrator, being appointed to decide a dispute. His/her appointment is by contract between the two parties.
The duty of the independent expert is to make a proper and reasonable investigation and to arrive at a non-negligent decision.
Having an independent expert involved in conflict resolution, should result in a dispute being determined ‘expertly’ and quickly, and usually once and for all.
This form of resolution is particularly suited to disputes on discrete technical issues. An expert normally has much more procedural scope than an arbitrator or a judge.
This process is generally described as a voluntary, non-binding private dispute resolution process facilitated by a neutral person enabling parties to negotiate a settlement. A core principle of mediation is that the parties ‘control’ the outcome rather than it being imposed upon them.
Mediation is usually a powerful first step towards settlement, restoring direct communication where it may have broken down previously. The role of the mediator is not to resolve the dispute but to assist parties to work out their own settlement, on terms that both can live with.
Following on from 1995 IEI (Engineers Ireland) Conditions of Contract for Civil Engineering Works’ a decision was made that conciliation would be introduced as a mandatory step before arbitration.
The primary purpose of conciliation is to assist parties to reach agreed settlement. HOwever if this is not achievable, the conciliator is to write a recommendation, stating how the dispute should be resolved.
This process should be quick, inexpensive, informal and flexible, with the expertise of the conciliator being a major factor.
Conciliation is often compared with and likened to mediation. However, conciliation is seen as evaluative on the basis that if the parties fail to reach agreement, the conciliator puts forward their own proposals
This is a very quick process (whereby a decision should be issued within 28 days). This process is not as flexible as conciliation or mediation and is often found to be inferior for complex disputes.
(Bond, 2014 Dispute Resolution and the Construction Contracts Act 2013)
We are happy to meet with you to explore the legal options available to you in relation to construction defects and building defects, including Pyrite Defects, affecting your property.
For more information or to arrange a meeting please contact Siobhan Marry by email or FREEphone us on 1800 844 104