This article is about Expert determination in the construction industry.
Expert determination is not used much but are worth a mention as part of a general discussion of dispute resolution in construction.
We support legal representation in more complex cases but we want to encourage especially smaller companies to feel more confident fighting for their contractual rights.
In the construction industry there are lots of disputes. Over the years, several forms of dispute resolution processes have been developed to help solve these disputes.
Expert determination is one of these forms.
It is quite simple to understand. Both parties appoint an independent person to decided the dispute.
The person must be an expert in the matters that are being disputed hence the term ‘Expert Determination’.
Private – the process is completely confidential
Less adversarial and allows both parties to maintain a close working relationship
Cheaper than say litigation or Arbitration.
It is faster than litigation or Arbitration and can lead to a binding decision.
It is informal and flexible. There is no complex set of rules to follow.
The decision is binding unless it is stated as not binding at the start of the process.
The person is an expert so doesn’t need time to understand the subject matter.
There is no legal or statutory requirement for either party to agree to this process.
A decision by an expert determination might not be recognised internationally so perhaps only to be used for domestic, national disputes.
An expert should be someone who is an expert in the subject matter where the dispute has arose.
The expert should be specifically named in the contract or a nominating body should be named.
When a dispute arises the expert needs to agreed to review and issue a decision on the dispute.
An expert may be one person or it may be several persons. This is useful when there are several aspects of a dispute that need to be resolved.
It can be used in several disputes especially relating to very complex technical issues whereby a lawyer would be completely lost.
An example would be if two parties are in dispute over the final account figure.
The information can be determined by an expert determination.
It can indeed be used to decide a legal issue such as a dispute over wording in a contract. In this case the Expert can be lawyer or several lawyers.
Some issues can be resolved in Mediation.
Other issues may unfortunately be too technical for both parties to ever agree on. Expert determination can be used to solve just these technical issues while mediation is used on the ‘easier’ non technical issues.