The options available for dealing with building disputes depend on several things, often including:

1. How quickly you want the dispute to be remedied,

2. What your available
budget is,

3. What kind or process you prefer,

Points 1 and 2 speak for themselves, but the last point requires an understanding of the pros and cons of each dispute resolution method.

1. Claim

2. Negotiations

3. Mediation

4. Dispute tribunal

5. Adjudication

6. Arbitration

7. Court litigation

We can help with all in some way, some we manage ourselves and some we can assist with in other ways.


Claim

It seems obvious but it is often overlooked. Our clients are typically involved in the construction industry (developers, contractors, and subcontractors- in the commercial and residential marketplaces).


This matters is because the contracts are often subject to the requirements of the Construction Contracts Act 2002.


The Act states that payment claims must include important information, and if this is not provided with the claim the claim is void. However, if the claim is valid then the recipient MUST provide you with certain information within a certain time, this is called a Payment Schedule.

If the recipient does not provide the information… they MUST PAY the claim. It’s the law.

Note that invoices do not meet the requirements of the CCA 2002 typically.

Image of two men shaking hands with a number of contracts on a table
Image of two men shaking hands with a number of contracts on a table

How can we help ??

We can fully formulate and submit your claim for you or provide you with the claim to send yourself. All we need is your contract and the relevant correspondence.


Similarly, if you have a claim you would like some assurances with, or have a claim which has been rejected incorrectly, we can assess that critically and/or suggest additional strengths.


The benefit to this step is that you receive an impartial peer review of the claim with ‘fresh perspective’ and if any other stages of dispute resolution were to occur, then clarification of the claim would likely be required anyway.


Negotiations

We often see scenarios where the claimant feels that they are entitled to claim an amount for some reason e.g. it feels fair, but find difficulty in setting out the claim correctly.


As often, we see scenarios where a claim has been made but has not been received fairly and the recipient may request substantiating information which it is not entitled to ask for.


In this scenario a recommended step is to have the claim assessed by an impartial party.

The findings and contractual reasoning for the validity of the claim can be provided to the recipient in an effort to correctly set out the claim and also give them confidence that the claim is valid.

In any event, clarification of the claim and finding areas which the parties agree on is often valuable and relatively low cost.

Image of two men shaking hands with a number of contracts on a table
Image of two men shaking hands with a number of contracts on a table

How can we help ??

We can help you with your written and attended negotiations by critically assessing frivolous claim rejections, or by negotiating on your behalf.


We find that this is a helpful first method of involvement where smaller contractors have cashflow or cost issues, or where adjudication is preferred to be avoided until absolutely the latest stage possible.


All negotiations are completely confidential and can occur remotely or by personal attendance.

Mediation


Mediation is a non-binding discussion between the parties, held at any location of choice but often neutral.

The difference between this and simply sitting down and having a chat at any other time is that the discussions are facilitated (helped along) by the mediator.

The mediator is an impartial party who assists the parties to understand the other parties position, and to assist the parties finding resolution to the dispute.

This often comes in the form of asking questions such as:

‘if you had to walk out of here today without a deal, you may have to undertake other costly options and may not be guaranteed a positive result. What would be lowest you would be willing to go to avoid that scenario ?’ The parties are free to make their own decisions and decisions are not binding, but the process can be valuable due to face-to-face interaction and the injection of a reasonable voice into the discussion process.

Image of two men shaking hands with a number of contracts on a table

How can we help ?

We can represent you during mediations with the other party.

We can also provide expert mediators to assist parties with disputes where mediation is the preferred option.

Mediator packages may include a mediator in addition to a conference room at an appropriate location with remote conferencing facilities.


Dispute Tribunal


Parties submit their respective positions to the disputes tribunal remotely.

The partis must attend a hearing at the prescribed location.

The partis must attend a hearing at the prescribed location.

Fees range from between $45.00 and $180.00


How can we help ?


We can assist you by formulating your claim for you and by ensuring you have sufficient information and evidence which would avoid a wasted hearing trip, however we cannot submit documents on your behalf or represent you in the proceeding. The disputes tribunal does not allow representation.

Adjudication


This is where an adjudicator is assigned to determine the matter pursuant to the Construction Contracts Act 2002 (CCA).

The claimant gets to submit its claim to the adjudicator before the respondent gets their say. The process is carried out remotely however in person meetings may be called (very rarely).

The adjudicator then makes a determination on the dispute which is binding under law, and typically requires payment of a successful claim within 2 business days.

The whole process takes between 17 and 55 working days (making a small assumption about when the adjudicator accepts to determine the matter, as it may be a few days here or there).

The Claimant usually pays a deposit to the adjudicator from which the adjudicators fee is deducted at the end. If the adjudicators fee (which is based on the amount of time needed to determine the matter) exceeds the deposit then the claimant must pay the remainder before the determination is provided.

The adjudicator can assign the fees of the whole process, including the costs of the other party, to whomever they choose if certain conditions are met.

Adjudications are binding unless superseded by a higher jurisdiction (either an arbitration or a court ruling).

Image of two men shaking hands with a number of contracts on a table

How can we help ?


We can fully formulate your claim and manage the whole adjudication process for you.

We will represent you and communicate with all other parties on your behalf.

We simply require your contract, the relevant facts and the supporting evidence.

We will guide you through the full process and ask simple questions to arrive at the information we need to provide as part of the process.

Arbitration


Arbitration is a similar process to adjudication, but it’s performed pursuant to the Arbitration Act 1996.

The ruling is binding internationally which is the reason they are a favoured dispute resolution method for international contracts.

The timing and costs for arbitration are significantly higher than adjudication of the same claim. This is due to several reasons including that all parties must be represented by lawyers and the timing of the process is typically far longer and is not mandated by the strict quick turn around requirements of the CCA.

Image of two men shaking hands with a number of contracts on a table

How can we help ?


We can assist you and your lawyer assess and formulate your claim.

We can also provide expert witness services for submission via affidavit and evidence as required.

We have experience with various forms of contract, common and not so common construction dispute scenarios.


Court litigation


Court litigation is subject to similar timing and cost implications as arbitration however the extent of the process both in respect to time and cost may be even higher due to ongoing stress to the court systems and availability issues regarding availability of all parties to attend the court.


So how do we help ?


We can assist you and your lawyer assess and formulate your claim.

We can also provide expert witness services for submission via affidavit and evidence as required.

We have experience with various forms of contract, common and not so common construction dispute scenarios.

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