Geology Reference
In-Depth Information
If a claim cannot be resolved between the contractor and the owner
then the claim might be passed to a third party. The two parties can
jointly appoint a technical expert to help resolve the issues through a
process of adjudication. It is a far less formal process than going to
court. The appointment of an adjudicator might be written into the
original contract (as speci
ed in the New Engineering Contract of ICE)
and his decisions should be complied with. For larger projects, the
parties might appoint an agreed panel of experts at the outset. The
panel can be asked to adjudicate on the validity of any claim
-
whether
conditions were different to those anticipated and whether they had
the adverse consequences claimed by the contractor. This leaves the
decisions in the hands of experienced professionals rather than lawyers
whose knowledge of ground conditions and ground behaviour might
be rather limited.
Mediation is an option where the parties to a dispute will plead
their cases to an independent mediator (who might be a lawyer rather
than a technical expert). He will try to get the parties to reach an
agreement and will also provide an opinion as to the likely outcome if
the matter is taken to the next, more expensive level. If a party (either
the owner or contractor) is told by an independent mediator that their
position over a claim is weak, then they may be more willing to reach
an agreement with the other side. Arbitration is a higher-level process
and is generally written into contracts as a way of having disputes
resolved. Both parties agree at the outset that this should be so, and
the location where any arbitration should be conducted. Arbitration
takes place in a court and there may be up to three arbitrators
-
perhaps one agreed between both parties and the second and third
chosen by each party independently. The cost, with lawyers (probably
several on both sides), barristers, independent experts (see next
section) and the court expenses, can be very high. In a recent case that
the author was involved with, the
final award to the winning party
was essentially the same as had been previously offered in settlement,
prior to arbitration, and was far exceeded by the cost of the legal
proceedings.
Arbitration decisions are generally taken as
however dis-
gruntled one party might feel at the result. Arbitration reports and
outcomes are generally kept con
nal
-
dential to the parties. Unfortunately,
this means that the profession does not learn lessons, which is a great
pity. The only cases that make their way into the literature as well-
documented examples are those that are actually taken to court (public
domain) or where there is some kind of forensic study in the case of a
major collapse such as the collapse of the Heathrow Express tunnels
and the failure of the Nicoll Highway excavations in Singapore. These
and other case examples are presented in
Chapter 7.
