a good thing to follow the first law of holes -
If you are in one, stop digging!
Denis Healey, English Politician
|Alternative Dispute Resolution (ADR) Processes||
ADR is designed to stop the
Scales of Justice being tilted.
Assisted by an impartial ADR
practitioner, Parties work
together to achieve an
outcome of their choosing.
|Adjudication - Australian Construction Industry|
|Arbitration & Expert Determination|
|Mediation & Conciliation|
|Security of Payment Act - Building & Construction Industries|
|Dispute Resolution Practitioner|
|Claims Management and Preparation|
|Expert Witness Services|
|Claims Preparation and Analysis Services|
|Papers on various aspects of Claims, ADR and the Law|
|Doyles Casewatch Series ( contemporary construction and engineering law reports )|
|Consulting, Mentoring and On-Site Support Services|
Security of Payment / Adjudication - Australian Construction Industry
Most Australian States have introduced legislation to help ensure regular and prompt payment for work done in the construction industry. Under the legislation claimants who have provided work, goods or services can force the respondent to make payment on account. Adjudication has been established to provide a just, speedy and inexpensive resolution of payment disputes.
Claimants who have a dispute over non or under payment can lodge an adjudication application with an Adjudicator or an Authorised Nominating Authority (ANA). The Adjudicator is a person agreed between the parties or nominated by an ANA to determine a payment dispute.
The precise requirements of the legislation in each State vary and expert legal advice is recommended prior to making or defending a claim. Time limits under all of the Acts are very short and must be complied with (particularly from the perspective of the Respondent defending a claim). For advice in respect of the Construction Industry Securities of Payment legislation (Adjudication), Mosaic recommends and works with Doyles Construction Lawyers in the Eastern States.
The Institute of Arbitrators and Mediators, Australia (IAMA) is an authorized ANA and has lists of suitably qualified adjudicators ready for nomination in each State. For additional information visit the IAMA web site at: http://www.iama.org.au/resources.htm and select 'Adjudication' from the options.
|Victorian Building Commission 'Securities of Payment' home page|
|View a copy of the 'Building and Construction Industry Securities of Payment Act 2002'|
|View a copy of the 'Building and Construction Industry Securities of Payment Amendment Act 2006'|
|The NSW Government
- Security of Payment
|View a copy of the 'Building and Construction Industry Security of Payment Act 1999 No 46'|
|View a copy of the 'Building and Construction Industry Payments Bill 2003'|
Papers and References
Arbitration & Expert Determination
Arbitration is a formal dispute resolution process in which two or more parties refer their dispute to an independent third person (the arbitrator) for a final and binding determination. The result of the arbitration, known as the Award, is enforceable in the same manner as a Court judgment. Commercial arbitration is governed by the relevant Commercial Arbitration Act in each State or Territory (this is different to "industrial" arbitration which is concerned with matters of wages, employment, etc).
Providing that the arbitration is conducted according to the principles of natural justice its procedures may be varied by the parties to suit the size and complexity of their dispute. It is the preferred procedure for parties seeking a binding determination of their dispute and an alternative to Court based litigation. It should be selected when parties to a contract require defined procedures that are a subset of those available in court but without the delays, public access or formality.
Under the direction of a qualified arbitrator, Arbitration is an expedient, private and efficient method of dispute resolution. It enables the dispute to be decided by a person familiar with the professional or technical background of the matters in dispute.
The parties are able to select an arbitrator with particular expertise and commercial experience in the subject matter of the dispute, or can request the nomination of an independent person from an appropriate authority such as the Institute of Arbitrators and Mediators, Australia (IAMA). Patrick Weaver is a Graded Arbitrator with IAMA.
The parties (and their legal representatives) should address the selection of arbitration as a dispute resolution procedure at the time of entering into commercial contracts, so that an appropriate agreement can be included in the terms of the contract (an "arbitration clause"). However, an agreement to submit a dispute to arbitration can be made by the parties after the dispute has arisen.
IAMA's Fast Track Arbitration rules offer a cost effective means to manage disputes. [ Download the Rules ]
The Australian Arbitration Acts are being updated. The new legislations is enforce in:
Expert Determination is a flexible alternative procedure for the resolution of disputes based upon the decision of an independent third party, the ‘Expert’. This is often the quickest and most effective way of resolving disputes which are relatively simple in content or are essentially technical in nature. An expert's determination will generally be enforceable through the courts as a contractual right accruing for the benefit of the successful party provided the expert has carried out the task which the contract required. If the expert performed that task, the determination is final and binding even if the expert made errors or took irrelevant matters into account. The parties to a dispute agree to be bound by the determination of the Expert and assist the Expert with information. [ Download the IAMA Rules for Expert Determination ]
To ensure an effective expert determination and minimise the risk of disputes about the clause or the process:
Mosaic's Director, Patrick Weaver is a graded Arbitrator with IAMA and a member of the AuDA Arbitration Panel (for resolving Domain Name disputes).
For additional information visit the IAMA web site at: http://www.iama.org.au/resources.htm and select 'Arbitration' or 'Expert Determination' from the options.
Mediation and Conciliation
Mediation and Conciliation are confidential processes where an independent and neutral third party assists the disputants to negotiate and reach a decision about their dispute. The key difference between the two processes is the level of involvement of the neutral third party in formulating any agreement reached by the parties.
In both processes, the neutral third party will, through their facilitation and technical skills, assist the parties explore the issues in depth and reach the best possible joint decisions that the circumstances allow. This is achieved by identifying the disputed issues, developing options, considering alternatives and endeavouring to reach an agreement.
In Mediation, the mediator will not offer suggestions or recommend solutions, the agreement is developed entirely by the parties and as a consequence is completely ‘owned’ by them at the end of a successful mediation. The mediator’s role is focused on facilitating an efficient and effective mediation process.
In Conciliation, the conciliator is more actively involved in the search for a resolution. The conciliator may advise on, or determine, the process of conciliation and may make suggestions for terms of settlement, give expert advice on likely settlement outcomes, and may actively encourage the participants to reach an agreement.
Neither the mediator nor the conciliator can impose a decision upon the parties. They may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role.
Mediation is particularly useful in complex matters involving parties in an ongoing contact where maintaining a working relationship may be essential. Because it is likely to be quicker and more cost-effective than the more formal processes of arbitration or litigation, mediation should be considered as early as possible after a dispute has arisen. It is particularly appropriate where a dispute involves complex issues and/or multiple parties.
All of the parties must agree to participate in a mediation, this can be achieved by way of a separate agreement or by a dispute resolution clause existing within a contract between the parties. Where privacy and confidentiality are important, mediation enables parties to preserve these rights which often leads to more satisfactory outcomes.
The parties are able to select a mediator or conciliator with particular expertise and commercial experience in the subject matter of the dispute, or can request the nomination of an independent person from an appropriate authority such as the Institute of Arbitrators and Mediators, Australia (IAMA).
For additional information visit the IAMA web site at: www.iama.org.au/resources.htm and select Mediation or Conciliation from the options.
Australia's leading ADR facilities is the Melbourne Commercial
Arbitration and Mediation Centre, a joint initiative of the Department
of Justice, Court Services Victoria, the Victorian Bar and the Law
Institute of Victoria. See: http://www.mcamh.com.au/
In negotiation the parties to a dispute must reach an agreement themselves, through a process they create. Whist in most circumstances, business people are quite happy and capable of conducting negotiations, from time to time the involvement of a skilled negotiator can assist a party to achieve its desired outcomes more effectively.
Negotiations are often structured and follow a predictable pattern. There are also many recognised styles and techniques of negotiating. Assistance with, or training in, negotiation can provide a valuable boost in the final agreement.
is a skilled and experienced negotiator who can be engaged to help an
organisation prepare for a negotiation and where appropriate assist in
the conduct of the negotiations.
Dispute Resolution Practitioner - Patrick Weaver
Patrick Weaver is a Graded Arbitrator and an Accredited Mediator with the Institute of Arbitrators and Mediators, Australia (IAMA). He is also very experienced in the preparation, negotiation and defence of commercial claims in general business, ICT and construction disputes and has been called to provide Expert evidence in a number of court cases.
Patrick is a Grade 2 Arbitrator, specialising in ICT and construction matters. Under the IAMA grading system, a Grade 2 Arbitrator is considered able to conduct complex arbitrations of medium size, or large arbitrations which are straight forward, within the arbitrator's fields of expertise. He passed his examinations and was first Graded as an Arbitrator by IAMA in 1987.
His interests and involvement in Mediation and Conciliation started in the mid 1980s when he participated in some of the Early Mediation courses run by IAMA. Generally, Patrick prefers to encourage parties to a dispute to use the processes of Mediation and/or Conciliation to resolve commercial issues in preference to the more expensive and disruptive/time consuming processes involved in Arbitration or litigation.
Patrick has worked extensively with clients in the preparation and analysis of claims. More recently, this has involved providing contract services to Doyles Construction Lawyers, focusing on schedule and cost analysis work in response to claims under the securities of payment legislation in both NSW and Victoria.
Expert Witness & Claims Analysis
Mosaic, our associates and consultants have extensive experience in the preparation, analysis and defending of contract claims. Our preference is to resolve problems before they become major by proactive management of projects [Refer Mosaic's Consulting Services].
Our key areas of expertise of dispute management are:
Dispute and claims management services offered by Mosaic include:
Our areas of expertise are primarily:
For legal advice, we recommend Doyles Construction Lawyers : http://www.doylesconstructionlawyers.com