When a dispute on a project arises, without question, ADR can be a much less costly route for all parties to follow, rather than taking the dispute to court.
Therefore, a judge is likely to question parties about the steps they have taken to avoid ending up in court, as in: ''Have you tried ADR and, if not, why not?' says Martin Burns, head of ADR research and development at RICS. Which is why the law in many countries requires any party contemplating litigation to explore and, if appropriate, use quicker, cheaper, private and less formal alternatives to the courts.
ADR can take different forms, such as arbitration, mediation or adjudication. If a party unreasonably declines to use ADR, they can be penalised by a judge in a costs order, which often means that they will be ordered to pay their own costs, even if they win.
"English law requires parties to explore quicker, cheaper, private and less formal alternatives to the courts"
Chartered surveyors often advise parties who are involved in disputes surrounding land, property and construction. Candidates who wish to qualify as chartered surveyors must now also demonstrate competency in conflict avoidance and dispute resolution. Although the APC course covers the mandatory ADR competency requirements of APC candidates, we believe it should be the minimum knowledge requirement for any professional working in the built environment, adds Burns.
RICS' Dispute Resolution Service (DRS) has developed an online ADR training programme that provides the basic knowledge and understanding of ADR they need. Candidates learn what ADR is, why chartered surveyors need to know about it, and what might happen if they or one of their clients ends up in court.
Greg Wade AssocRICS, senior project manager at Airey Miller in London, took the course because he was increasingly involved in protracted Extension of Time requests and Loss and Expense claims.
"These can escalate to a point where some form of ADR is needed, particularly if the relationship between employer and contractor starts to turn adversarial, as the respective parties become entrenched in their positions," says Wade.
"My expectation is that I will develop greater confidence and proficiency in this area, which will help me demonstrate greater value to my clients."
Modus staff 19 December 2022
Gela Pertusini 01 December 2022