Posted by Shaun Perry on Sep 9, 2009 in Building Surveying
The conventional approaches to dispute resolution are Mediation, Adjudication, Arbitration and Litigation. Another option that may sometimes have a place in disputes is to actually solve the problem complained of!
Where the dispute concerns defective building work there may well have been a complete breakdown of confidence between the parties. Rectifying the problem(s) may, however, present a better way out than continuing to argue about it, for both parties. This may require some compromise: an imperfect solution perhaps. However weighed against the costs and risks of legal action and the virtual certainty that there will be some measure of compromise in the end, such an approach may appeal to both parties.
It does not always work. Positions may be so entrenched that there can be no solution or the defects complained of may be so fundamental that they cannot be rectified. However our experience is that, once a contractor has been given a clear cut specification and told ‘Do this, this and this and the dispute will be at an end’, he is more likely to agree than to continue to fight. The contractor will be keenly aware that no third party tradesmen ever like rectifying the defective work of others. They invariably make a meal of it and charge accordingly.
By the time this point arrives the parties generally heartily dislike and distrust each other. Our role in these circumstances is to shuttle between the parties until an agreement is reached and then to keep a close eye on the rectification works. Our experience of analysing defects and designing, specifying and managing a variety of different refurbishment and repair works, makes us ideally suited to this role. If, at any point, the process breaks down, the conventional dispute resolution options can be reverted to.
In one case we were called in to deal with a new house that had been built with a basement with a faulty tanking system. Realistically nothing could be done to put the owner completely back to the position he should have been in. However it was possible to retrofit an internal tanking system which, together with some land drainage, would largely resolve the problem. The contractor was relieved to find that there was a solution that the client would agree to. The client was relieved to bring the matter to a conclusion without being subjected to the stress and uncertainties of court action against a contractor who could very easily go into liquidation.