The Building Disputes Tribunal offers a number of dispute resolution processes to resolve your building or construction dispute.
Adjudication is a unique fast track statutory dispute resolution process for resolving building and construction disputes under the Construction Contracts Act 2002, with the primary purpose of improving cashflow.
Adjudication is the most commonly used dispute resolution process. This is largely because adjudication is a quick and relatively inexpensive process for resolving building and construction disputes. In adjudication, the parties refer the matters in dispute to an independent and impartial person called an adjudicator who decides the disputed matters according to the substantive law of New Zealand in the form of a determination.
Adjudication will almost certainly be quicker and less expensive than litigation through the courts.
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Arbitration is a formal dispute resolution process where two or more parties agree to submit all or certain disputes between them to an independent person called an arbitrator. Arbitration is entered into by agreement and the process is governed by the Arbitration Act 1996 and the Arbitration Amendment Act 2007.
An arbitrator’s decision, called an award, is binding on the parties and is enforceable as a judgment of the Court.
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Arb-Med is a hybrid dispute resolution process that combines the benefits of arbitration and mediation including speed, procedural flexibility, confidentiality, choice of decision maker, ease of access to the tribunal, continuity, finality and enforceability of the outcome.
The primary objective of Arb-Med is the informed good faith negotiation and settlement of the dispute by the parties with the initial assistance and efficiency of the arbitrator’s information gathering powers in the context of a formal arbitration process that will immediately resume if the mediation that follows is not successful.
If a settlement is not reached in the mediation, the arbitrator who was acting as mediator will have been informed as to the issues in dispute and the facts of the case which can be carried over into the arbitration with potentially significant time and cost savings for the parties. The parties are also welcome to request the appointment of a replacement arbitrator if the arbitration is resumed.
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Mediation is a consensual, confidential, and relatively informal negotiation process in which parties to a dispute use the services of a skilled and independent third party called a mediator to assist them to define the issues in dispute, to develop and explore settlement options, to assess the implications of settlement options and to negotiate a mutually acceptable settlement of that dispute which meets their interests and needs.
Generally, any agreement reached will be recorded in writing and will be binding on the parties. Any party to such an agreement may enforce its terms by issuing court proceedings.
Mediation has the advantage of assisting in repairing and/or preserving business relationships where adversarial proceedings may not. Mediation is a particularly effective process in circumstances where there needs to be an ongoing relationship between the parties.
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Expert determination is a simple means of dispute resolution. Expert determination is a consensual, confidential and relatively informal process whereby parties to a contract agree to refer matters in dispute to an independent person to decide. The independent person is selected because the person is respected as having expertise relevant to the matters in dispute between the parties.
Expert Determination can provide either a binding or non-binding determination (subject to agreement by the parties) without involving many of the formalities that can beset more formal processes such as arbitration and litigation.
A determination which the parties have agreed shall be binding on them may be enforced by a party to the process issuing court proceedings.
Expert determination also has the advantage of assisting in preserving business relationships where strictly adversarial proceedings may not.
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Early Neutral Evaluation is a confidential, settlement oriented dispute resolution process that produces a non-binding evaluation of the facts, evidence and legal merits of a case by an independent neutral third party.
The objective of Early Neutral Evaluation is to position the case for early resolution by settlement or trial by providing the parties with guidance as to the likely outcome if the dispute were to be heard by a court in the form of an independent Evaluation of the facts, evidence, and legal merits of the matters in dispute.
Although settlement is not the primary objective, the purpose of Early Neutral Evaluation is to promote settlement discussions at an early stage in the litigation process, or at the very least to assist parties to avoid the significant time and expense associated with further steps in litigation.
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Dispute Review Boards (DRBs) are normally set up at the outset of a contract and remain in place throughout its duration. Generally comprising one or three members thoroughly acquainted with the contract and its performance, the DRB informally assists the parties, if they so desire, in resolving disagreements arising in the course of the contract and it makes recommendations or decisions regarding disputes referred to it by any of the parties. DRBs have become a standard dispute resolution mechanism for contractual disputes arising in the course of mid or long term contracts.
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