DISPUTE RESOLUTION SERVICES

DISPUTE RESOLUTION SERVICES

Construction projects are never without claims. Although a construction project should be an endeavour with a beneficial outcome to all parties involved, capital intensiveness, being the very nature of the construction industry, often leads to adversarial relationships that can result in disputes. It is always recommended to resolve dispute through ADR (Alternative Dispute Resolution) procedures. It has become increasingly popular that parties tend to resolve disputes through dispute resolution procedures. The broad-based advocacy over the past three decades for increased use of mediation, arbitration, and related processes is often called the alternative dispute resolution movement.

Our consultants are both well equipped with legal and technical knowledge as well as experience and are fully capable of resolving your disputes in the way parties preferred and opted. This may include negotiation, mediation, arbitration and adjudication.

NEGOTIATION

Negotiation is one of the most basic forms of interaction, intrinsic to any kind of joint action, as well as to problem solving and dispute resolution. Our consultants can accompany you to meetings or conduct negotiation on your behalf with effective, systematic preparation and having considered all the circumstances, underlying interest, facts, strength and weaknesses surrounding the negotiation. Our consultants, acting as negotiators, aid you to meet your interests as best as possible. We understand that each case is different in context, personalities, knowledge, and skills that make every negotiation unique.

Our experienced negotiators are ready to deal with a variety of eventualities. This may involve claim negotiation meetings, resolving an already crystallized dispute, pre-contract meetings, issue regarding contractual clauses, issues related to entitlement at different stages. Our experts consider the following aspects at the core of each negotiation:

  • What are the interests of the parties involved (our interests, other parties’ interests, shared interests and conflicting interests)?
  • Are there any third parties who are interested about the matter?
  • What are your best alternatives and how can they be improved?
  • What are the possible agreements or pieces of agreement which might best satisfy the interests?
  • What is the best possible mix of contingencies and concessions and benefits?
  • Ways of utilizing differing interests to generate the best possible value?
  • What external criteria might plausibly be relevant?
  • What standards might a judge apply and what “ought” to govern an agreement?
  • What is our authority - what is theirs?
  • What are some illustrative, well-crafted commitments?
  • What relationships are important?
  • How to best preserve the valued relationships?
  • How to plan and approach the negotiation?
  • What strategy and process would better suit the negotiation at hand?

Mediation

Our trained neutral mediators assist disputing parties in reaching mutually agreeable resolution. They, in the best possible manner facilitate information exchange, promote understanding among the parties, and encourage the exploration of creative solutions. If the direct negotiations between parties yielding no result, it may be necessary to resolve the dispute through mediation.

ARCHWAY provides bespoke mediation forums and provide mediation services that included stages such as , Preliminary arrangements, Information gathering, Issue and interest identification, Option generation, Reality testing, bargaining and negotiation, agreement and closure.

In between our mediators will usually suggest creative solution to satisfy parties interests that are often lead to successful conclusions.

There are variety of reasons parties shall opted for mediation such like accelerated resolution, flexible communication, forum to express emotions, potential for parties to exercise self-determination, opportunity for the parties to agree to creative solutions.

ARBITRATION

Arbitration is a process by which a private third-party neutral renders a binding determination of an issue in dispute. The flexibility of the arbitration enables parties to tailor a dispute resolution in such a way that suits their underlying needs and interests. Moreover, the speed, confidentiality and finality permits parties to preserve their existing relationship and protect their reputation within particular industry. Although the arbitration is an alternative dispute resolution method, it must still exist within a legal framework and the laws of the jurisdictions still mandate and regulate certain matters of the arbitration to ensure the due process and finality of the decision.

Whether it is arbitration between two parties, consolidation and class action arbitration, concurrent hearing or multi-party arbitration, ARCHWAY services include below:

  • Case management for arbitration process
  • Dispute appraisal & preparation
  • Providing an independent opinion on the position of a party in case of dispute
  • Providing guidance on the arbitration process from the request to the award
  • Acting on behalf of / representing the party as the in-house case manager
  • Assisting the party / the lawyer / the experts in the preparation of pleadings, witness statements, reports, quantum submissions, and opening/closing submissions
  • Coordination with the other party and organizing the arbitration hearing
  • Acting as a secretary to the arbitral tribunal
  • Drafting Arbitration Agreements

ADJUDICATION

Our consultants are well-qualified adjudicators excelling in technological, engineering and legal aspects. They are qualified adjudicators who are aware of the adjudication process and the decision making. We are well placed to manage the procedure form start to finish, including claim preparation, legal arguments and drafting of referrals, responses, replies and, if necessary, rejoinders and surrejoinders.

Once faced with a referral, the DAB will (or should) quickly determine the procedural steps to be implemented. Helpfully, the FIDIC Guide provides a format for a DAB process along the following lines:

  • Referral
  • Response
  • Reply
  • Rejoinder
  • Hearing
  • Claimant’s case
  • Respondent’s case
  • Claimant’s response
  • Respondent’s response
  • DAB questions

The DAB is free to act in an inquisitorial manner and can decide who would attend the meetings. The importance of DAB is that they can involve on the project from the beginning of the project and thus are in a better position to understand the nature of the dispute.

Importantly, because of the flexibility of the process and because it should operate quickly and cost effectively, there should be a greater opportunity to maintain working and commercial relationships.

It is suggested that, if used properly, standing DABs can add value to a project in terms of real life dispute avoidance. It remains the case that DABs are not being used in the region to the extent they are used in the other parts of the world.