Dispute Resolution Services

Introduction

There is a wide spectrum of alternative dispute resolution methods from which Parties and their legal advisers are free to choose.  Of these, mediation is the most topical and enjoys support from the courts.  Statutory adjudication is also available in disputes associated with construction projects.  However, no one system suits all situations and often it's a matter of "horses for courses."

Beckwith Mediation offers a range of alternative dispute resolution solutions that are particularly suitable for the types of disputes that frequently arise in commercial contracts, construction projects and in contracts relating to the built environment.  We also have expertise available to assist with mediation in judicial review.

Early Neutral Evaluation

Early Neutral Evaluation is suitable where two or more Parties wish to negotiate a settlement based on the Opinion of a neutral third party ("Neutral").  Following the submission of a Position Statement and associated documents, the Neutral provides a non-binding Opinion as to how the matter might be determined in an adjudication or at trial.

Early Neutral Evaluation, as the name suggests, is used at the earliest possible stages of a dispute although it can, in fact, be used at any time.  The key benefit from the process is that it enables the parties to appreciate the strengths and weaknesses of the case and this is what assists the subsequent negotiation and settlement process.

Early Neutral Evaluation is non-binding and the Parties do not have to accept it although they can agree afterwards to settle their dispute in accordance with the recommendations contained within it.

Civil and Commercial Mediation

Mediation is based upon principles of negotiation and problem solving.  It emphasizes the long-term interests of the Parties.  Mediation is supported by the courts and Parties may be subject to costs sanctions for unreasonably refusing to mediate.

The mediation process commences with an agreement to mediate being entered into followed by the production of Position Statements and accompanying documents.  A mediation hearing, usually lasting a single day, is then convened by the mediator.  Parties negotiate either in a joint session or through the mediator in private meetings.  The decision making power remains with the Parties at all times, including whether to continue with the mediation or not.  The role of the mediator is to help define the issues, eliminate obstacles to communication, explore alternatives and assist the Parties in arriving at an agreement.  The Parties control the mediation.

Our (soon to be available) mediation manager software, subrosa, simplifies the process of making and dealing with the administrative issues associated with arranging mediations.  This includes making the agreement, setting the timetable, submitting documents, etc.  Subrosa also enables you to review the CV's of experienced mediators and select the person whom you believe will best assist in resolving your dispute.  The mediation hearing is carried out face to face as we strongly believe that mediations are most successful when conducted by the Parties (and/or their legal representatives) in person.  Our consultants are able to act either as Mediator or as Mediation Advocate in any given matter.

Mediation is suitable for disputes of all types and of any value.  It offers a radical departure from the judicial process.  Mediation works because it is the Parties who come to an agreement which has been reached and defined by the Parties themselves.

Pro Bono Mediation Service

Pursuing small claims through adjudication has become expensive - some might say prohibitively so.

To help Parties settle small disputes where the costs of resolution might otherwise be disproportionate to the sums involved, Beckwith Mediation offers a pro bono mediation service for commercial disputes of all kinds where the amount involved is less than £15,000.

We provide the Parties with a mediator* for up to 6 hours (inclusive of 2 hours preparation time) to help them attempt a negotiated settlement of the matter.

Available throughout England and Wales, parties receive a 99% discount on the fees charges and need only pay the costs of travelling and accommodation (if required), room hire and catering costs.  Contact us for further information.

This is a Beckwith Mediation "Disputes Don't Exist" initiative.

* The Mediator may be a Pupil or Newly Accredited Mediator wanting to gain experience.

Adjudication Services

Adjudication is available at any time to Parties to a construction contract and is governed by the principles laid down in the Housing Grants, Construction and Regeneration Act 1996 (as amended).  Further provisions are contained in the Scheme for Construction Contracts. 

Adjudication is a popular method of alternative dispute resolution and it is supported by a body of case law developed by the courts, most notably the Technology and Construction Court whose expert judges have shaped this part of the law.

Douglas Beckwith accepts appointments and nomination as Adjudicator, subject to diary commitments but does not act as advocate or provide legal services in adjudication cases.  Richard Beckwith accepts appointments as legal adviser or advocate in all such instances.

Beckwith Mediation offers a pro bono mediation alterative to adjudication in small disputes under £15,000 in value (see above).

Independent Expert Appraisal

Independent expert appraisal is used for a wide variety of commercial disputes.  It draws on the particular expertise of a neutral third-party expert ("Expert") to determine the issues.  This saves the time and cost of requiring expensive expert witnesses and court hearings.  Independent expert appraisal can be applied to single issue disputes or all disputes arising out of or under a contract.

Independent expert appraisal is a highly flexible and relatively informal alternative to litigation or arbitration.  This is because it is not subject to restrictive case management practices nor is there a need for a hearing.  Unless the Parties agree to the contrary, the Expert can conduct investigations independently of the Parties and make a binding decision based on the findings of those investigations without reference to the Parties.  We recommend that Parties should obtain independent legal advice before embarking upon independent expert determination but there is no need to be legally represented during the process itself (unless, of the course the Parties so wish).

Independent expert determination is suitable for commercial contract disputes of all kinds and value.  It enables Parties to submit their dispute to an independent expert for determination in order to save time and costs.

Last Offer Arbitration

Last Offer Arbitration as means of producing a final binding outcome based on the Award of a neutral third-party ("Arbitrator") made in accordance with the Arbitration Act 1996.

In Last Offer Arbitration, the Arbitrator reviews the submissions of the Parties and produces an Award to favour the Party whose last offer was closest to fair.  The Arbitrator is provided with a range of values that cover the last two "closed" offers in the negotiation and which extend an equal distance beyond each of those closed offers to include the closest "open" offer.  The Arbitrator is not told what the open or hidden offers were; merely that that range includes at least one of the open offers and that the hidden acceptance range is centered on the total range of offers.  The Arbitrator is then asked to review the submissions of the Parties to determine a fair value.   Depending upon the fair value determined by the Arbitrator the Award goes to the Party whose offer is closest to fair by taking the average of fair and that Party's last offer.  In the event of a tie then the Award goes to the Party that moved their position first.

The clear benefits of Last Offer Arbitration are:

  • The Parties engage in a negotiation process prior to the need for a third-party determination and this may settle the matter;
  • Both Parties will be unaware of who was favoured in the arbitration.  Even if one Party is able to determine that the other Party was favoured it will not necessarily be apparent to that second Party.
  • Depending on where the visible proposals lie, neither Party is likely to know whether they won or lost.

Last Offer Arbitration rewards fairness but does so in a way that avoids a win/lose outcome.  This helps to preserve working relationships notwithstanding the fact that a dispute had arisen that required arbitration.  This method of alternative dispute resolution is especially suited to monetary "final account" disputes arising out of construction contracts of all kinds.

Executive Dispute Resolution

Executive Dispute Resolution is a formal but flexible process where each Party presents its best case on a without prejudice basis to a panel comprising an independent mediator and senior executives from each of the Parties own organisations.

it is most effective where the Parties want to resolve their dispute quickly and cheaply and where the dispute or difference has been handled by managers and others at the project (or job site) level.  It requires senior managers to appraise the matter objectively to reach a negotiated agreement.

It works equally well for two party and multi party disputes and is particularly effective on construction and engineering contracts where issues are mostly of fact, e.g. variations to contract, extension of time, defects and related issues.  Executive Dispute Resolution is a highly cathartic process but requires a genuine desire on the part of all parties to collaborate in designing the dispute resolution process and then applying it with a view to achieving a commercially realistic, robust and legally binding agreement.   When all of these ingredients are present then Executive Dispute Resolution has certain advantages over adjudication and mediation alone.