■ Mediation

Effectively, a mediation need involve no more than the two parties to the dispute and a mediator. In principle, therefore, where the matter is straightforward it should be possible to arrange a mediation without involving legal or other expert assistance. However, there are several reasons why it may be advisable, even in relatively straightforward circumstances, to consider calling on experienced assistance:

• The process will involve a lot of work.
• That work will reduce the time you can spend earning fees.
• It will be stressful, but less so if the work is shared.
• Dealing with the process yourself brings the risk of your relationship with the other party deteriorating, when it might otherwise be profitably preserved.
• Experience of dispute resolution in general, and of mediation in particular, will be helpful.
• An impartial third party view on matters will be invaluable.
• If you are responding to a claim your PI insurer is likely to appoint legal representation on your behalf.

Preparing for the day

Before the day of the mediation you will need to prepare yourself by

• preparing a brief outline of the background of the matter and the issues in dispute
• preparing a brief outline of your position on the disputed issues (a position statement)
• assemble and organise factual evidence that supports your view of the matter. This may include appointment documents, drawings, specifications, meeting reports, site diaries, letters and statements by other people who were involved in the work
• liaising with your PI insurer, if you are responding to a claim.

Copies of these documents are likely to be requested by the mediator when he or she is appointed. They should also be provided to the other party in the dispute at a time agreed between the parties and the mediator.

You should expect to receive a similar position statement and bundle of evidence from the other party. It is essential that you read it carefully and digest it. It is important that you try to identify any logical flaws in the argument or any statements or assertions that are not supported by evidence. It is just as important to identify and acknowledge any well-supported arguments that tend to weaken or undermine your own position. If you can see areas where you may have to concede, prepare yourself to make those concessions in the interests of promoting and maintaining an open and constructive dialogue.

Call a Professional

If you feel that you would prefer or need to have help from someone who has experience of the process, you should begin the process of identifying the appropriate people and enlisting their help as soon as possible. This will avoid abortive work and wasted time on your part if their advice leads to a reconsideration of your approach.

You should start by considering the type of help that you might need. This might range from moral support and practical help with organising papers to someone to discuss technical and practice issues with to specialist legal advice. Once you know what you need, you can start to identify the people who can provide it.

Partners or friends can provide moral support and practical help. Solicitors and barristers will be needed if legal questions are involved. Colleagues or practitioners from other practices may be able to provide a sounding board on technical matters.

If you need expert evidence, however, this must come from an independent expert who has no connection with you that might be seen to cause a conflict of interest.

Partners or friends

If all you need is a little moral support, or some practical help with the papers and the arrangements, then business partners, senior colleagues or even family and friends may be able to provide all that you need.

Solicitors

If you are undertaking mediation as part of the pre-action protocol in litigation proceedings, then it is likely that you already have a solicitor managing your case. If you are undertaking it independently in an attempt to avoid a third party resolution of the matter, and have not engaged any legal assistance to date, you should seriously consider involving a solicitor if:

• the issues and arguments are at all complex
• the sums at stake are large
• there are specific legal issues
• the other party is reluctant to engage in the process
• your relationship with the other party is strained or has broken down
• the other party has legal representation
• there are a lot of documents
• there are a number of people who can provide factual evidence
• you need expert evidence.

A solicitor will:

• manage the communications with the other party
• assess the facts of the matter and develop a strategy for presenting your strongest case
• assemble and manage the documentation
• interview witnesses and prepare witness statements
• manage the process
• make the practical arrangements for the mediation
• represent and advise you as the mediation progresses on the day.

You should choose a solicitor who has experience of construction disputes. Your own solicitor, or your local high street solicitor, may not have such experience but should be able to provide details of a number who do. Alternatively, the Solicitors Regulation Authority should be able to help you find a suitable practice. Solicitors generally charge by the hour but some will offer a lump sum fee, if asked. At the very least you need to know the hourly rates of those who will be working on your case and an estimate of the total time that will be spent.

Counsel

Counsel (a barrister) will be appointed by your solicitor if they consider that additional legal assistance is needed. This appointment may involve additional costs and should be discussed with you before it is made. This will enable you to understand exactly what additional skills counsel will provide and why these are necessary. The role of barristers generally is discussed later in this chapter, on p. 105. In mediation, a barrister is likely to be appointed in order to:

• provide legal advice and opinion on specific aspects of the case
• help develop an effective strategy and argument
• present the case to the mediator and the other party and its advisers at the mediation
• participate in discussions with the other party’s lawyers about any legal issues in the dispute
• participate in detailed negotiations during the mediation itself
• advise on the strengths and weaknesses of the case put forward by the other party.

Expert witness

If there are disagreements about technical or professional practice matters, then experts may be required in order to provide an independent opinion as to which point of view is more likely to be reasonable. Such matters might include whether:

• a design or particular aspect of a design complied with the applicable standards
• the duties set out in the terms of appointment were properly carried out
• the standard of the architect’s performance fell below that of a competent architect acting with reasonable skill and care.

An expert witness is required to provide an independent and impartial opinion on the matters he or she is asked to address. Your solicitor is likely to approach several before deciding who would be most appropriate for the circumstances of your case. If you are going solo, then the RIBA, the CIArb or the Academy of Experts will be able to provide you with details of experts for you to approach.

Witnesses of fact

These are people with first-hand knowledge of the events related to the dispute. They may be colleagues who worked on the project, members of the contractor’s management team, or even site operatives.

■ Adjudication

Even if your first thought is that you would be able to successfully undertake adjudication yourself, there are a number of compelling reasons why you should give serious consideration to seeking assistance:

• The process operates under a very short timetable. It is important, therefore, to be able focus arguments on the substantive issues in the dispute and to discard those related to peripheral issues. This is more easily achieved by someone with a dispassionate viewpoint rather than someone who is intimately and emotionally involved in the matter.
• It has specific protocols and requirements and these can generate long arguments about peripheral issues, for example, about procedural matters or jurisdiction. Assistance from someone with the knowledge and experience to be able to deal with these peripheral issues quickly and effectively will allow more time to be spent on the matters that are critical to your case.
• The other side’s case is likely to have been prepared by a professional team. It may also contain arguments relating to issues of procedure and jurisdiction, as well as the matters in dispute. Understanding these arguments, assessing their strength and relevance and quickly formulating an appropriate and effective response is best done by someone experienced in dispute resolution in general and in the adjudication process in particular.
• As noted elsewhere, there are benefits to having an objective, third party view of the issues in dispute. This can help focus attention on the strongest points of a case, perhaps jettisoning weaker arguments in order to avoid dissipating energy and resources in what is a short and concentrated procedure.
• When it comes to the presentation of the case to the adjudicator, whether in writing or orally at a hearing, a professional advocate is more likely to be dispassionate, forceful and persuasive than someone who is emotionally involved in the issues and inexperienced in the process.

Nevertheless, a brief outline of the steps necessary to refer a matter to adjudication are provided below.

Going Solo

In theory, it should be possible for an architect who is seeking a remedy from a client or seeking to resolve a dispute with a subconsultant where the matters involved are relatively straightforward to prepare the documents required in order to be able to refer the matter to adjudication and to represent themself at any hearing.

If you do decide to do this you will need to:

• familiarise yourself with the procedural and timetable requirements of the process (see Chapter 4, p. 77 for an outline of the process and for details on timetables)
• be sure that you have the resources to meet those requirements (see Chapter 4, p. 81)
• seek agreement with the other side on possible adjudicators. Determine availability and fee rates (see Chapter 4, p. 81 for where to find an adjudicator)
• assemble all of the documentation relevant to the dispute
• speak to all of the potential witnesses of fact and arrange for them to make written statements setting out what they know about the matters in dispute
• prepare a statement of claim setting out your position and argument.

This is a considerable amount of work and even for a straightforward matter it is likely to take several weeks and maybe months before you are in a position to submit a notice of adjudication and the notice of referral that will follow. Once the notice of referral has been issued and the adjudication process is under way, you are likely to find that you have little or no time to give to anything else until it is over.

If you are on the receiving end of a notice of adjudication, your PI insurer is likely to require you to have legal representation. It is unrealistic to expect to respond adequately and effectively without professional assistance.

Call a Professional

Solicitors

In addition to the legal contributions noted previously under mediation, solicitors may be required simply in order to provide sufficient resources to deal with assembly of documentation and preparation of submissions within the tight timetable imposed by the adjudication process.

Claims consultants

Some parties may prefer to use a claims consultant rather than a solicitor to assist them. CLAIMS CONSUATLNTS generally have a technical background in one or more of the construction professions, most likely quantity surveying, and some legal training or qualifications. The need for separate technical expertise is thereby reduced or eliminated and the process of assembling a technically complex, but legally straightforward, claim is made more efficient.

Because of the combination of technical expertise and lower cost, contractors often prefer to use a claims consultant than a solicitor for claims relating to certificates and final accounts. A word of caution, however: the type of dispute that may involve an architect is likely to be less technically straightforward than a final account or other money claim. If this is so, then a solicitor is likely to be more appropriate to manage the process and call upon whatever outside technical help may be required.

Counsel

If your case is technically complex or involves legal issues, your solicitor may feel that it would be advisable to appoint counsel to provide assistance. Barristers provide detailed advice on specific questions of law and are often asked to provide opinion on the relative strengths and weaknesses of the opposing cases. They also act as advocates; that is, they will present the case on your behalf, either in writing or orally at a hearing in front of the court or tribunal. In adjudication a barrister is likely to be appointed in order to:

• provide legal advice and opinion on specific aspects of the case
• help develop an effective strategy and argument
• set out the arguments related to technical issues in a clear and understandable manner
• advise on the strengths and weaknesses of the case put forward by the other party
• present the case to the adjudicator by way of written submissions, and also orally at any hearing that the adjudicator requires
• to provide a counterbalance to counsel appointed by the other side.

Witnesses of fact

Witnesses of fact will play a similar role in adjudication to the one described in mediation.

Expert witnesses

Expert witnesses are used in adjudication less frequently than in other forms of dispute resolution. This is because the adjudicator is more likely to be a construction professional than a lawyer and is able to bring his or her own technical expertise to bear on the matters in dispute.

■ Expert Evaluation and Expert Determination

The processes of expert evaluation and expert determination are described in Chapters 3 and 4, respectively. Because they are relatively informal and will be tailored by the expert to the circumstances of the case, both processes are suited to going solo – but see the note of caution under ‘Call a professional’, below.

Going Solo

Because any matter that is suitable for resolution in this way is likely to be centred on technical issues, it is possible that the factual documentation and the statement of case could be prepared and presented to the expert by the parties themselves without legal assistance. There are no formal or standard rules for these processes. The expert will determine, on the basis of their experience and in discussion with the parties, the procedures that are most appropriate for the circumstances of the case. Nevertheless, in most instances the preparation needed will be very similar to that required for mediation. In particular, you will need to:

• prepare a brief outline of the background of the matter and the issues in dispute
• prepare a brief outline of your position on the disputed issues (a position statement)
• assemble and organise factual evidence that supports your view of the matter. This may include appointment documents, drawings, specifications, meeting reports, site diaries, letters and statements by other people who were involved in the work
• select an appropriate expert.

As with mediation, copies of these documents should be provided to the expert when he or she is appointed. They should also be provided to the other party in the dispute at a time agreed between the parties and the expert. It is important that both parties have a clear understanding of the opposing case and of the factual evidence that it is based upon. Without this, it will be difficult to make the effective representations that the expert will depend upon in coming to their decision.

Call a Professional

Despite the fact that the process appears to lend itself to going solo, outside help – typically from a solicitor but perhaps from a construction professional with experience of dispute resolution – may be useful in order to:

• bring an objective viewpoint to bear on the subject
• develop a strategy and structure within which to organise the information that is to be presented
• minimise the development of bad feeling between the parties.

In particular, this last item is worthy of consideration before deciding not to engage outside assistance. One of the major advantages of expert evaluation or determination is that it can provide a very speedy resolution of relatively straightforward technical or financial issues, which in turn can allow the project to progress effectively and an otherwise constructive business relationship to continue. Having someone who is not involved in the day-to-day running of the project to prepare for and manage the process will minimise the risk of relationships between the parties themselves deteriorating and potentially jeopardising the project or the ongoing relationship.

■ Arbitration

Although the Arbitration Act sets out a process for arbitration, many of the procedures may be changed by agreement of the parties. Also, a number of arbitral institutions, such as the Chartered Institute of Arbitrators (CIArb), the International Chamber of Commerce (ICC), and the London Court of International Arbitration (LCIA), publish their own rules and manage the course of arbitrations conducted under those rules. This means that from the outset, choices and decisions must be made which may fundamentally affect the process. They may also present an opportunity for an informed party to take advantage of an uninformed party.

For this reason, it is not advisable to undertake arbitration, and in particular international arbitration, without the benefit of advice and assistance from a competent and suitably experienced solicitor.

■ Litigation

Litigation, on the other hand, although an equally formal process, is strictly governed by the Civil Procedure Rules (CPR). This means that it is possible to manage the course of a straightforward litigation without legal assistance by understanding and following the rules. This in itself is a major task, however, and not as simple as it might sound. For this reason you would rarely be well advised to undertake litigation without legal assistance. People who undertake litigation themselves are referred to as ‘litigants in person ’.

Going Solo

As a litigant in person, you will need to read and understand various parts of the CPR and their associated PRACTICE DIRECTIONS (a set of directions). There are 74 parts in total and they can be found online.²²

Not all will apply to the particular circumstances of your case but the following are likely to be of general application:

• Part 1 Overriding objective
• Part 2 Application and interpretation of the rules
• Part 3 The court’s case management powers (case management is the overall management of a case by the lawyers acting for a party)
• Part 4 Forms
• Part 5 Court documents
• Part 6 Service of documents
• Part 7 How to start proceedings
• Part 9 Responding to particulars of claim
• Part 10 Acknowledgement of service
• Part 12 Default judgment
• Part 13 Setting aside or varying default judgment
• Part 14 Admissions
• Part 15 Defence and reply
• Part 16 Statements of case
• Part 17 Amendments to statements of case
• Part 19 Parties and group litigation
• Part 20 Counterclaims and other additional claims
• Part 22 Statements of truth
• Part 24 Summary judgment
• Part 26 Case management – preliminary stage
• Part 27 The small claims track
• Part 28 The fast track
• Part 31 Disclosure and inspection of documents
• Part 32 Evidence
• Part 34 Witnesses, depositions and evidence for foreign courts
• Part 35 Experts and assessors
• Part 36 Offers to settle (a refusal to accept this offer, which is to settle during the course of proceedings, will have consequences related to the award of costs to the refusing party)
• Part 41 Damages
• Part 44 General rules about costs
• Part 70 General rules about enforcement of judgments and orders

For a commentary on the rules and a discussion of the matters that they apply to, the two books that practising lawyers refer to are: Blackstone’s Civil Practice, which is published annually by Oxford University Press, and Civil Procedure: the White Book, which is published annually by Sweet & Maxwell. These cost several hundred pounds each but provide invaluable, accurate and up-to-date information on, and interpretation of, the rules. Your local reference library may well have a copy of either or both. Your nearest university with a law faculty will certainly have copies and may be persuaded to let you use or borrow one. You would be ill-advised to represent yourself without having access to one of these books and becoming as familiar as you can with the relevant sections of the CPR.

If you are thinking about taking on litigation as a litigant in person, you should be aware that the amount of work needed will be considerable. In addition to gaining an understanding of the CPR, you will need to:

• assemble the documents required to set out your case
• provide the evidence to support that case
• respond to and rebut the arguments supported by the documents and evidence provided by the other side
• present the case orally in front of a judge and opposing counsel
• respond orally to the case made by opposing counsel
• question (examine) witnesses of fact on the evidence they have given.

The last three of these tasks must be performed in the imposing setting of a formal courtroom, which can be daunting, even for a professional advocate.

Judges tend to recognise the difficulties faced by litigants in person with respect to the procedural aspects of a trial, and will generally tolerate a lower level of document management and written and oral advocacy than that expected from professional advocates, but there is no compulsion on them or on opposing counsel to do so. However, the law and its processes will not bend to accommodate a lack of understanding of the issues, as Court Case 5.1 shows.

Call a Professional

If you are considering bringing a claim, you will need a solicitor to manage the process and the development and presentation of your case. If you are facing a claim from another party, such as a client, your PI insurer is likely to want to take over conduct of the matter and will appoint a solicitor on your behalf.

PI insurer

Your contract of insurance will almost certainly require you to notify your insurer as soon as you become aware of the possibility of a claim against you. It is vital that you do this, even if you believe the possibility of a claim is remote or you are confident that you are not at fault. Notification of a potential claim has no adverse effect on your insurance premium or your relationship with your insurer, but failure to notify may invalidate your policy, leaving you uninsured and personally liable for the legal costs associated with any claim against you that arises and for any losses that might eventually be sustained.

You should remember that in any claim against you which is likely to be referred to your PI insurer, it is the insurer’s money that is at risk. The insurer will therefore wish to take what it considers to be the most appropriate steps to protect its position and to avoid or minimise any losses. If a claim does materialise, then the insurer will take over management of the response, thereby relieving you of that burden.

Even if you are not at fault in your own work you may, nevertheless, find yourself facing a claim which may be successful. For example, you may enter into subconsultancy agreements with other design consultants in order to offer the employer a multi-disciplinary service. If the employer has a complaint concerning the work of one of these, then their only course of action will be to sue you as the person with whom they have a contract. If the claim is successful, your insurer will have to pay the claimant, but may be able to recover the money from the appropriate subconsultants by suing them on your behalf. This is because insurance contracts typically involve rights of subrogation which enable an insurer to circumvent the restrictions of privity of contract and ‘step into the shoes’ of the insured in order to sue parties with whom the insured has a contractual relationship.

This is a process that your insurer will want to control from beginning to end in order to ensure the greatest chance of success, so it is important to notify them of any potential claim as early as possible. They are likely to be grateful for the notice rather than critical of your performance.

Legal representation

Although becoming a litigant in person is a possibility, the complexities and stresses of litigation are such that it is far preferable to seek professional legal assistance. In practice, this means appointing a solicitor to take on the conduct of the case through all of its stages. The solicitor will also arrange for counsel and for expert witnesses where these are necessary and will deal with all communications with the court and with the other side.

However, you will be liable for the cost of any legal team that is appointed. Although a winning party can expect to recover the majority, or a significant part, of its costs from the losing side, the initial outlay and the final irrecoverable balance may be beyond the means of many potential litigants. It may be possible to negotiate conditional fee arrangements with both the solicitors and counsel but this will not be possible with respect to expert witnesses who must be, and be seen to be, independent and impartial.