Dispute Resolution

Our involvement in dispute resolution

Examples of our dispute attendances

Usual terms of appointment

Further information on this site and elsewhere:

• Guidance for parties in - or in contemplation of - dispute
• Mediation
• Arbitration
• Adjudication and the Construction Contracts Act 
• Complaints about Licensed Building Practitioners

 Our involvement in dispute resolution

Guidance to parties:  When parties are facing a potential dispute, or perhaps have received a claim (or intend to make one), or see an actual or potential problem, I am available to provide guidance on the “what do I do now?” sorts of questions.  In particular, the Construction Contracts Act requires actions and responses to meet specific requirements and (perhaps short) timeframes. 

Negotiation and mediation:  Acting as mediator to facilitate the exchange of views, identify the issues, evolve potential resolutions, move the parties away from conflict and towards agreed outcomes, and arrange for the documentation of those outcomes so that they can be acted upon and/or enforced.

Arbitration and adjudication:  Acting as an industry-experienced independent arbitrator or adjudicator to receive, sift, and test the evidence, and to formulate a reasoned decision that decides the issue.

Expert appraisal:  Providing independent and experienced analysis and reporting on technical and/or industry-specific issues, including to private parties, the WHRS, and the LBP scheme.  

Litigation:  Assisting legal representatives to identify prioritise and respond to technical and/or industry-specific issues.  To the extent sought by the instructing lawyer, and which is within the expertise and experience which would withstand later scrutiny, I have provided and am available to provide comment on contract norms and requirements (including for “informal” contracts or documentation);  technical support on building and design practice and performance issues;  technical assessment of building failures;  factual and strategic assessment of building surveyor reports;  reviews of statements of claims and responses;  assessment/allocation of causation and related damages;  and expert opinions as background or as witness.  

Examples of our dispute attendances

•  Interpretation of ambiguous/inadequate contract documentation
• Informal contracts:  interpretation of terms, scope of work, payment provisions
• Review and analysis of:  expert reports, litigation risks, settlement strategy, liability.
• Owner’s objections to designer’s fees and building costs as varied by design changes
• Addressing failures in design, estimating, contract observation, contract administration
• Allocating defects across design, construction and maintenance
• Leaky buildings:  housing and multistorey/multi-unit construction
• Disputed claims for variations, time extensions, delayed payments
• Cost/time issues arising from unforeseen site conditions; change in scope of work 
• Claims for payments versus counterclaims for defective work or poor contract performance
• Subcontractor variation and time extensions arising from work by others
• Conflict between neighbours;  ditto cross lease owners;  resource consents
• Allocation of costs and responsibilities on termination of lease
• Facilitation of operational and governance issues.
• Resolution of appeals and complaints brought before a statutory board.

Usual Terms of Appointment

The NZIA provides standard terms of engagement for consultant services appropriate for attendances such as these. As a Fellow of NZIA, it is usual that I use these terms, and they can be provided on request.

As an arbitrator/mediator/adjudicator, and AMINZ panel member for each of them, I am bound by the relevant protocols established by AMINZ . They are available for download HERE.

I generally initiate mediation/arbitration/adjudication by sending each of the parties (or the enquiring party) a standard "one size fits all" form/agenda/memorandum/agreement to be filled in as far as practicable and so as to initiate discussion on the time frames, subject matter and process.  In due course, that becomes the basic agreement between the parties and the mediator/arbitrator/adjudicator, but fleshed out to suit the circumstances.

Fees are generally on an hourly basis for each and all attendances, plus costs incurred.  Where appropriate, a daily basis, lump sum and travel arrangements can be negotiated.  It is not usually practicable to fix a sum for such work ahead of time, but sometimes an estimate can be provided when there is sufficient information available to do so.