The history of the Building Disputes Tribunal and the specialist dispute resolution services that it provides predates its incorporation in 1996 by some six years during which time the Directors operated under the name of Dispute Resolution Services (Auckland) Limited (DRS). The seeds of a private, independent, specialist nationwide dispute resolution service for the building and construction industry were firmly planted when DRS was established. Those seeds grew out of the Directors’ personal experience and dissatisfaction with state litigation as a process for resolving building disputes in a timely and cost effective manner – that outcome simply did not, and could not, result from the legal framework and the dispute resolution environment that existed and operated at that time.
Initially DRS provided arbitration and expert determination services in relation to building and construction disputes as those processes were the only recognised and accepted alternative means for resolving building disputes then available. However, following the very successful mediation training course presented in Auckland in 1991 by Dr Christopher Moore and Mary Margaret Golten of CDR Associates in Bolder Colorado, DRS immediately recognised the potential of mediation as an effective process for resolving building disputes in an informal setting that would allow parties to find flexible and creative solutions to satisfy their interests, maintain relationships and minimise their costs.
DRS quickly moved to develop and provide professional mediation services for the building and construction industry (in addition to its existing DR services) as mediation rapidly became embedded in the alluring ADR culture that was growing and developing in New Zealand at that time. Much of that appeal and growth resulted from the commercial community’s then increasing dissatisfaction with the cost, delay and inflexibility of litigation and arbitration as processes for resolving commercial disputes.
It must be said that Arbitration in the early 90’s was a very different process to what modern arbitration is, or at least ought to be, today. Despite what was said and written by its proponents at the time, arbitrators and lawyers typically provided and sought a process that closely mirrored and replicated the very formal, time consuming and expensive court processes that arbitration was said to repair – it simply did not do so - and to add insult to injury, one had to pay for one’s ‘Judge’ in addition. Control of the arbitration process in the early 90’s was firmly held in the clasp of the Courts and the lawyers - the parties were merely impotent pawns in a power game that they paid to observe from the sidelines. Many of the advantages of arbitration had been lost as the process developed to more closely mirror the formality of litigation and it was hardly surprising that arbitration began to lose favour universally at this time.
It was during this period in the early 90’s that DRS developed and provided an expedited (fast-track) commercial arbitration process for the express purpose of resolving building and construction disputes fairly, promptly and cost effectively. It is fair to say that there was initial resistance from the legal profession to this new and novel approach to arbitration with its unashamed requirements for transparency and short timeframes for the various, and limited, procedural steps leading to an award – looking back, it is interesting to observe that the expedited commercial arbitration process designed and developed by John Green for DRS in the early 90’s was almost identical in all respects to adjudication under the Construction Contracts Act, a statutory dispute resolution process that would follow some 10 years later to provide for the speedy resolution of disputes arising under construction contracts.
The expedited commercial arbitration process was hugely popular with the building and construction industry because it provided a true alternative to state litigation and the ‘private commercial arbitration’ that was then on offer. DRS conducted literally hundreds of arbitrations under its expedited commercial arbitration rules and introduced the concept of fixed fees for low value claims of limited complexity to ensure a proportionate response and solution to those matters.
From the outset, DRS was committed to educating and informing the industry, the legal profession, and the community about dispute avoidance, conflict management and dispute resolution practices and procedures as well as providing dispute resolution services – a commitment and focus that endures to this day.
In pursuit of that objective, DRS published a Guide to Arbitration to inform and educate parties about the arbitration process that many were bound to follow as a result of contractual undertakings – most parties had absolutely no idea what arbitration was and what it meant for them. In 1992 the Directors generously allowed the Arbitrator’s and Mediator’s Institute of New Zealand Inc. to adopt and use their Guide for the Institute’s own purposes and the updated version of that ‘Guide’ remains in use by the Institute today.
By the mid 90’s, the Directors of DRS wanted a brand that more accurately described and reflected the specialist focus of their services and one that would be readily identifiable by parties to construction contracts and their advisers and the concept of the Buildings Disputes Tribunal was borne – a private, independent, specialist dispute resolution service for the building and construction industry. Building Disputes Tribunal (NZ) Limited was incorporated on 2 April1996.
On 1 April 2003, the Construction Contracts Act 2002 came into force and in doing so, reformed the law relating to construction contracts and dramatically changed the face of dispute resolution in New Zealand. The Act provided for a new and different dispute resolution process ‘Adjudication’ for the speedy resolution of disputes arising under construction contracts with the primary purpose of improving cashflow in the industry.
In 2008, the Building Disputes Tribunal was approved by the Minister of Building and Construction as an Authorised Nominating Authority for the purpose of nominating adjudicators under the Construction Contracts Act 2002 and launched its unique nomination and administered adjudication service.
With 20 years experience in the avoidance, management, and resolution of building and construction disputes by adjudication, arbitration, mediation, expert determination and other early intervention processes and techniques, the Building Disputes Tribunal is recognised and respected as the leading provider of specialist dispute resolution services to the building and construction industry in New Zealand.