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News & opinion

14 OCT 2020

Expert determination – the next best ADR method

Disputes are an everyday occurrence in the global built and natural environments. This is especially evident in construction, which is an immensely complex industry.

Construction programs are fast-paced and involve a multitude of relationships, creating numerous points at which disputes can occur. Globally, the average value of contract disputes and length of time it takes to resolve them causes significant problems for the industry and for the wider economy. Collaboration is beginning to play a vital role in the global response to the COVID-19 pandemic. Long-term, adopting collaborative ways of working can help project participants successfully avoid, mitigate and resolve disputes

Alternative methods

The need to improve the way relationships are managed, and how differences of opinion are handled, are increasingly important, but the fact remains that people involved in the industry will not always manage to agree with other people. When there is disagreement, then contracting parties need to have an effective method to resolve their differences effectively. This imperative has highlighted various Alternative Dispute Resolution (ADR) methods that save time and are not as costly to implement as the traditional means of resolving conflicts, such as the courts.

One such method is independent Expert Determination, which allows parties to appoint a neutral expert to determine issues in dispute. It is also one of the types of ADR mechanisms suggested by courts to settle disputes in preference to litigation.

As a confidential form of dispute resolution, expert determination enables parties to agree a timetable with the expert who will be a person with specialist or technical knowledge relevant to the dispute. Comparative to arbitration or litigation, this is less formal and can operate with greater flexibility.

Joe Kelly, Director at Dalriada Construction Consultants L.L.C. shares that there are several reasons for the importance of using ADR mechanisms when resolving disputes. These include saving time and cost, as well as having a conflict resolved by a person with knowledge and expertise in the matter that is in dispute.

In Expert Determination the neutral expert takes an active role, which is not like the other traditional mechanisms such as arbitration and litigation where the dispute resolver is deciding solely on the persuasiveness of evidence presented by the parties. Here the dispute resolver makes investigations, undertakes research and applies their expert knowledge of the subject matter to reach a decision on the dispute.

Joe Kelly
Dalriada Construction Consultants L.L.C.

Fostering best practice

With more interest and demand developing for Expert Determination, especially to resolve issues raised due to delays, disruption and added costs among others, the need for skilled expert determiners has also increased.

To help professionals understand the process, its principles and conducting it in practice, from the initial request to act and the appointment processes, through to the production and publication of the expert determination, RICS has introduced the Online Expert Determination Training programme. Globally relevant, it can be undertaken online via the links below.

The aim of the training, as stated by course trainer Mark Entwistle, is to provide expert guidance through the nuances of the expert determination process and the differences from other non-court techniques. By exposure to real life scenarios explained in the course, delegates gain experience of expert determination in action.

Course delegate Andrew Howard of ADHPRO Ltd, found attending the programme to be highly beneficial. He said that the course tutors are extremely knowledgeable and well-placed to guide attendees, offering a high calibre experience. Strong supporting materials, as well as practical examples within the training, provide a comprehensive understanding of what it is to be an Expert Determiner.

This course exceeded my expectations, it was extremely well managed in respect of its accessibility to the materials, tutors and other students. The course tutors were extremely knowledgeable and delivered the material in a structured and practical way.

They provided their guidance and extensive experience as well as involving the students with practical examples that will no doubt affect those acting as an Expert Determiner. The supporting material and reading matter provided was comprehensive, well organised and easily accessible.

Andrew Howard

Parties  are now realizing there are real  benefits in terms of reduced costs and time and quick and commercially viable outcomes. By  not throwing every issue straight into arbitration or litigation but instead using more practical ways to resolve them, the use of mechanisms such as expert determination is rising. Through this, the need for credible and skilled expert determiners, who can work with parties in a flexible manner, will continue to increase as well.