Mediation & arbitration

Rethinking arbitration; arbitration on the back foot

My purpose is to generate debate. In England, by 1996, the arbitration process had failed the construction industry. This failure spawned the Housing Grants, Construction and Regeneration Act 1996 (HGCRA), which created the statutory right to adjudicate all disputes arising under a very wide range of construction contracts and provided a fast-track system of dispute resolution at relatively low cost compared with arbitration.

Mediation - Prometheus Bound?

So it is, that in the established Church of England and of Wales, mediation has been referred to twice daily for over 450 years. This is worth mentioning because in the modern multi-cultural and multi-faith society of England, there is a tendency to see mediation as something relatively new and even as an import from the USA, first introduced in the 1980s.

Adjudication for All

Part 2 of the Housing Grants, Construction and Regeneration Act 1996 relates only to construction contracts (as defined in the Act). Yet it has a significance for dispute resolution and a potential impact on future legislation which is remarkable.

The immediately available arbitrator

In 1995 I wrote an article entitled "Immediate Arbitration". The idea behind it was to exploit the full flexibility of the arbitration process. Arbitration did not have to be a highly formal, inflexible procedure similar to litigation. It did not have to be deferred until after practical completion.

The effectiveness of adjudication where the claimant is in insolvent liquidation

As long ago as July 2000, Lord Justice Chadwick in the case of Bouygues (UK) Limited –v- Dahl-Jensen (UK) Limited [BLR 2000, 522] recognised that an Adjudicator’s decision should not be enforced by summary judgment where the Claimant had subsequently gone into insolvent liquidation and where there were claims and cross-claims between the two parties.

Refusing to mediate can be a costly mistake

The recent decision in Garritt-Critchley v Ronnan is a stark reminder of the risks involved in refusing to engage in alternative dispute resolution (“ADR”). In this case the defendant repeatedly rebutted the Claimant’s offers of mediation, resulting in a punitive costs order being made against them. Parties should bear this in mind when a dispute arises and give due consideration to the various methods of ADR so as to avoid being penalised on costs.
1 2

Filter by article type