Construction disputes can quickly escalate, resulting in a situation where neither party is willing to backdown. This kind of impasse often seems impossible to resolve. However, there is action you can take to settle the matter – and this does not necessarily have to involve court proceedings.
Resolving construction disputes
Construction disputes are a frequent occurrence in both residential and commercial builds. Arguments commonly relate to issues such as:
- The quality of workmanship
- The amount of time spent on a project
- The costs involved
- Payment and debt recovery
- Professional negligence
Whichever side of the dispute you are on, we appreciate that a construction dispute is never a pleasant experience. It can cause delays, financial losses and a significant amount of stress. Ultimately, you will just want to resolve the dispute quickly and effectively, allowing you to move on. Yet you might not see a way around the roadblock. Both you and the other party believe that you are in the right – so how can you possibly proceed?
Get expert legal advice
The first thing is to get expert legal advice at the earliest available opportunity. Your knee-jerk reaction might be to take the matter straight to court. But there are other avenues to explore first, almost all of which are faster and less expensive than court proceedings. A solicitor who specialises in construction disputes can advise you on the best strategy in your particular case. This might include negotiation, mediation, arbitration, adjudication, or a combination of approaches.
You might be surprised at how many building disputes can be resolved through the art of negotiation. This can be difficult to achieve on your own, as you are too involved in the argument for a meaningful discussion to take place. A solicitor can liaise with the other side on your behalf, working towards a mutually agreeable solution. These discussions can take place on a ‘without prejudice basis’, meaning the information cannot later be used in court.
Sometimes, little negotiation is actually needed. This is particularly true in cases where the other side is clearly in the wrong. For example, the terms of the contract may have been explicitly breached. If so, a letter from a solicitor might be all it takes to get things back on track. This is known as a ‘letter before action’. Other times, it is necessary to open a channel of communication and discuss a viable route forward.
If negotiations are unsuccessful – or are not applicable in your case – the next step could be mediation. This is when both parties come together with a specially trained mediator to discuss their differences. The mediator is not a judge and cannot impose any kind of ruling. Rather, the mediator is there to guide the conversation. It is up to you and the other party to reach a solution.
Mediation is a popular form of alternative dispute resolution (ADR). It is quick and relatively inexpensive. It also offers a more amicable approach than, for example, litigation through the courts. This will be important if you need to maintain a working relationship with the other party.
Arbitration is another form of alternative dispute resolution. It is particularly well-suited to construction disputes. The process sees both parties present their case to an independent arbitrator. This person will be a construction industry expert. The arbitrator will then determine the outcome. This decision is legally binding and is enforceable by law.
The difference between mediation and arbitration is the issue of control. With mediation, you remain in control of the process. You can withdraw at any time and you must also consent to the proposed resolution. With arbitration, an independent third-party makes the decision for you. This is preferable in certain circumstances, especially as the arbitrator will have the technical expertise to pass judgment in your case.
The final method of alternative dispute resolution to consider is adjudication. In the context of construction disputes, adjudication is favorable in very specific circumstances. This includes when a limited issue arises that requires a quick resolution, or where there is confusion over the terms of the contract.
During adjudication, the parties present their case to a third-party adjudicator. As with arbitration, this is usually an industry expert. The adjudicator will then make a decision within 28 days. This swift settlement allows the project to continue with minimal delays, ensuring momentum is not lost and a working relationship is maintained.
Litigation through the courts
All forms of alternative dispute resolution are confidential, unless they become the subject of enforcement proceedings. They are also voluntary. If one party refuses to co-operate, you may have little choice but to pursue litigation through the courts. Nevertheless, the courts generally require that you have at least attempted methods of alternative dispute resolution first. Penalties can be imposed on those who refuse to entertain the idea of an out-of-court settlement without good reason.
If court proceedings are suitable in your case, there will be a hearing in front of a judge. This may take place at the Technology and Construction Court, depending on the circumstances. The judge will hear evidence from both sides before making a legally-binding decision. It is important to have your own legal representative who can argue your side of the story and support your case with the relevant evidence.
Litigation through the courts is more expensive and more time-consuming than methods of alternative dispute resolution. It is also held in the public domain. For these reasons, court proceedings are generally considered a last resort.
Speak to our construction dispute solicitors
There are, therefore, many ways in which you can resolve a construction dispute. Our solicitors can consider your case before recommending the right strategy. What works for one person will not work for the next. It takes a professional to know precisely how to resolve a construction dispute quickly and effectively. We are here to protect your best interests, and promise to work towards an outcome that is favorable for you.
For a confidential discussion with our construction dispute solicitors, please contact us today at Altion Law.
Call us on 01908 414990 or complete our online enquiry form and we will get back to you.