Civil Engineering Reference
In-Depth Information
2.3
Imposed solutions to disputes
2.3.1
Med/Arb and Med/Adj
These are mediations that have a contractual provision for an adjudi-
cated decision if the dispute does not settle. Sometimes the mediator be-
comes the adjudicator/arbitrator; sometimes it is a separate person. The
Construction Conciliation Group (CCG) in the UK has a time-limited
fixed-price scheme which guarantees a solution by the conciliator mak-
ing a binding decision at the end of the fixed time, if the parties still
have not reached a mediated agreement. The problem with this process
is that, in the earlier capacity of a mediator, the adjudicator/arbitrator
is party to confidential information that would not normally be shared
if the neutral is to impose a decision. It is very hard for that neutral to
ignore the confidential information provided in the mediation, and so
there is a danger that the parties may hold such information back in
the mediation phase. That would prejudice the success of the mediation
and probably cause any mediated solution to be less efficient.
2.3.2
Adjudication
Adjudication is a form of time-limited fast track arbitration. Although
generally available in any sector, it is a statutory right, and therefore
particularly common, in the construction industry. The adjudicator is
usually a specialist in the area of dispute and will give an opinion,
usually within 28 days, following a papers-only submission or paper
and oral submissions. This is a decision based upon the relevant law
and is binding unless appealed, leading to a final determination of the
disputes by the court or arbitrator.
2.3.3
Ombudsman
There are several ombudsman schemes in the UK, most notably in the
housing and financial services sectors. The ombudsman is usually seen
as the last resort, the parties having exhausted other reasonable means
of resolution. Generally the scheme is funded through a levy on a partic-
ular industry and the ombudsman's decision is binding on the industry
member, but not on the complainant. It does not therefore guarantee a
resolution of the dispute!
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