We advise our clients on the right choice of the Dispute Resolution methods available to them by analyzing the dispute they are currently facing. Choice of the right Dispute Resolution method is an important step a client takes to address the dispute in a right manner. Such selection comes right from the contract drafting stage to ensure right provisions of Dispute Resolution methods are included in the contract.
In general, for Dispute Resolution, we assist our clients in providing standard work plan for providing engineering and construction claims analysis and expert testimony services is to use a phased approach. Our service delivery is dependent on the stage of the dispute, available contractual mechanisms for dispute resolution, the work already performed by our client, the availability of project documentation, the issues in dispute, and the timing of required work products that are defined by the chosen dispute resolution schedule. Therefore, we can make any necessary adjustments to our typical work tasks. The list below summarize the scope of our claim analysis and dispute resolution services and is not exhaustive:-
- Requests for Equitable Contract Adjustments/Claims Documents/Experts Reports
- Expert Reports Pertaining to our Analysis and Defense Against Claims
- Critical Path Method (CPM) Schedule Analyses to Quantify Delay, Time Extension and Liquidated Damages Entitlement
- Quantification of Direct and Indirect Damages Including Delay and Loss of Productivity
- Graphics and Multimedia Presentation in Support of Negotiations and Expert Testimony
- Computerized Document Database and OCR-Based Internet Document Repository and Retrieval System
- Expert Testimony in Mediation, domestic and International Arbitration, Litigation, or ADR Forums
- Independent, Third-Party Neutral Analysis of Claims/Facilitation of Settlement.
A team of our professionals and our associates with in-depth industry experience will evaluate your project’s schedule and identify all possible pitfall in scope, logic, sequence and duration. They will assist to identify and segregate critical and non-critical activities, evaluate resource loading and perform “What If” and “Time-Window Based” analysis. Our experts will utilize the most appropriate method for establishing and evaluating schedule conflicts, analyzing delays/ acceleration, conducting productivity analysis, auditing costs and determining damages. We use a phased approach to address the dispute in hand by:-
- Identifying the issues
- Quantification of the problems
- Managing the risk to protect our clients’ interest
Our Services in Dispute Resolution is categorized below according to the Dispute Resolution methods chosen:-
- LITIGATION
We support our clients in the construction industry in the following areas in relation to Litigation:-
a. Act as a Client representative with construction industry experience to provide input and manage the legal counsel supporting the Client’s litigation process including on the submissions.
b. Act as Fact Witnesses including provision of witness statements where we are involved in the project concerned for the Client.
c. Expert Witness Services.
- ARBITRATION
We support our clients in the construction industry in the following areas in relation to Arbitration:-
a. Selection of the suitable Arbitration Institutions and the appropriate model clauses during the early stages of the Contract drafting to suit the project.
b. Provide guidance, support and advice on the key appointments the like of the arbitrators, counsel and expert witnesses.
c. Provide guidance, support and advice throughout the arbitration process in relation to the procedural aspects of the arbitrations and roles & responsibilities of the client including case management where required.
d. Act as a Client representative with construction industry and arbitration experience to provide input and manage the legal counsel supporting the Client’s arbitration process including on the submissions.
e. Act as Fact Witnesses including provision of witness statements where we are involved in the project concerned for the Client.
f. Expert Witness Services.
g. Arrangement of the hearing venues and transcription services.
We have worked along with top international law firms and are able to provide end to end arbitration services.
- ADJUDICATION
About Adjudication
Adjudication is a process where a neutral third party provide a decision on the issues of the dispute submitted to the Adjudicator. The decision issued by the Adjudicator, subject to the provisions of the contract, are binding on an interim basis until a final decision made by means of Arbitration or Litigation. In Brunei Darussalam there is no statutory act for adjudication of construction related disputes as in other countries the like of United Kingdom, Singapore, Malaysia, Hong Kong etc.
Our Services
In absence of any statutory adjudication provisions in Brunei Darussalam, our services on adjudication include as acting as a member of the Dispute Adjudication Board (FIDIC 1999) and Dispute Avoidance and Adjudication Board (FIDIC 2017) on project-to-project basis both as a full-standing DAB/DAAB member or ad-hoc DAB/DAAB member.
In addition, where we are already part of the projects’ consultants for the Clients, we also advice our clients on the selection of the DAB/DAAB members for their projects including appointment and management of the DAB/DAAB processes throughout the project DAB/DAAB involvement.
- MEDIATION
About Mediation
Mediation is a much less formal process than going to court, but the conflict resolution process does involve distinct stages designed to lead to a mutually beneficial compromise.
Pursuing a lawsuit can be costly. By using mediation, two or more parties can resolve a dispute informally with the help of a neutral third person, called the mediator, and avoid expensive litigation.
Most mediators have training in conflict resolution, although the extent of a mediator’s training and experience can vary considerably.
Unlike a judge or an arbitrator, the mediator won’t decide the outcome of the case. The mediator’s job is to help the disputants resolve the problem through a process that encourages each side to:
- air disputes
- identify the strengths and weaknesses of their case
- understand that accepting less than expected is the hallmark of a fair settlement, and
- agree on a satisfactory solution.
The primary goal is for all parties to work out a solution they can live with and trust. Because the mediator has no authority to impose a decision, nothing will be decided unless both parties agree to it. The process focuses on solving problems in an economical manner—for instance, taking into account the cost of litigation rather than uncovering the truth or imposing legal rules.
The mediator will assess the case and highlight the weaknesses of each side, the point being to hit home the risks of faring far worse in front of a judge or jury, and that the penalty or award imposed will be out of the control of the litigants.
Many people think that mediation is an informal process in which a friendly mediator chats with the disputants until they suddenly drop their hostilities and work together for the common good. It doesn’t work this way. Mediation is a multi-stage process designed to get results. It is less formal than a trial or arbitration, but there are distinct stages to the mediation process that account for the system’s high rate of success.
Most mediations proceed as follows:
Stage 1: Mediator’s opening statement.
After the disputants are seated at a table, the mediator introduces everyone, explains the goals and rules of the mediation, and encourages each side to work cooperatively toward a settlement.
Stage 2: Disputants’ opening statements.
Each party is invited to describe the dispute and its consequences, financial and otherwise. The mediator might entertain general ideas about resolution, as well. While one person is speaking, the other is not allowed to interrupt.
Stage 3: Joint discussion.
The mediator might encourage the parties to respond directly to the opening statements, depending on the participants’ receptivity, in an attempt to further define the issues.
Stage 4: Private caucuses.
The private caucus is a chance for each party to meet privately with the mediator. Each side will be placed in a separate room. The mediator will go between the two rooms to discuss the strengths and weaknesses of each position and to exchange offers. The mediator continues the exchange as needed during the time allowed. These private meetings comprise the guts of mediation.
Stage 5: Joint negotiation.
After caucuses, the mediator might bring the parties back together to negotiate directly, but this is unusual. The mediator usually doesn’t bring the parties back together until a settlement is reached or the time allotted for the mediation ends.
Stage 6: Closure.
If the parties reach an agreement, the mediator will likely put its main provisions in writing and ask each side to sign the written summary of the agreement. If the parties didn’t reach an agreement, the mediator will help the parties determine whether it would be fruitful to meet again later or continue negotiations by phone.
Our Services
We support our clients in the construction industry in the following areas in relation to Mediation:-
a. Selection of the suitable Mediation Institutions and the appropriate model clauses during the early stages of the Contract drafting to suit the project.
b. Provide guidance, support and advice on the key appointments of mediators with both parties’ consent.
c. Provide guidance, support and advice throughout the mediation process as client’s adviser.
d. We, with the consent of both parties and where there is no conflict of interest, also act as mediators in an ad-hoc mediation.
- EXPERT DETERMINATION
About Expert Determination
Expert determination is a procedure in which a dispute or a difference between the parties is submitted, by agreement of the parties, to one [or more] experts who make a determination on the matter referred to it [them]. The determination is binding, unless the parties agreed otherwise. Notable features of expert determination are:
- Expert determination is consensual
- The parties choose the expert(s) with relevant expertise
- Expert determination is neutral and flexible
- Expert determination is a confidential procedure
- The determination of an expert is binding, unless the parties agree otherwise
Our Services
We support our clients in the construction industry in the following areas in relation to Expert Determination: –
a. With our experts having several years of experience in the Construction Industry, we are able to act as an Expert to provide an independent determination (binding or non-binding subject to parties’ agreement) of the issues in the dispute currently faced by the parties.
b. Where we are already Client’s project consultant we can act as an advisor to Client to support for the appointment and co-ordination with an Expert for their Determination.
- NEUTRAL EVALUATION
About Neutral Evaluation
Neutral evaluation is a way to resolve a dispute without going to litigation or arbitration. During neutral evaluation, a neutral third party (the evaluator):
- Evaluates the case based on evidence provided by you and the other party.
- Provides an estimate of the likelihood of success of your case at trial.
Evaluators are generally experts in the field of dispute.
Neutral evaluation is not legally binding unless both parties agree that it will be legally binding. Early neutral evaluation generally reduces a case to a manageable size, clarifies relevant facts, allows a balanced evaluation of strengths and weaknesses, and provides an estimate of the likely damages. It also involves the parties, with beneficial effects up to and including settlement.
Parties can decide what to do with the evaluation.
Parties may:
- Use the evaluation to assess the strengths and weaknesses of your case.
- Use the evaluation to serve as a basis for further and fuller negotiations, or, at the very least, help parties avoid further unnecessary stages in litigation or arbitration.
- Make the evaluation binding: This means the parties will have to follow the evaluation as if it is a court judgment. Both parties must agree to record a consent judgment or terms of settlement based on the evaluation.
Our Services
We support our clients in the construction industry in the following areas in relation to Neutral Evaluation:-
- With our experts having several years of experience in the Construction Industry, we are able to act as an Expert to provide neutral evaluation of the issues in the dispute currently faced by the parties.
- Where we are already Client’s project consultant we can act as an advisor to Client to support for the appointment and co-ordination with an Expert for their evaluation.
- NEGOTIATION
Negotiations can be conducted at early stage of a dispute for resolving issuing and getting into an agreement / resolution. Negotiations can also be assisted by the experienced negotiators who have the industry knowledge.
Our Services
We support our clients in the construction industry in the following areas in relation to Negotiation:-
- Pre-negotiation session coaching
- Represent our clients in the negotiation
- Act as an advisor throughout and provide support and guidance
- Evaluate the offers from the other party to assist the client in decision making or proposing counter offers
- Review of the terms of the eventual agreement (if any) as an outcome of the successful negotiation process prior to client’s agreement
- CONCILIATION
Conciliation in the commercial sense is generally understood as an extension to mediation where, when the disputants are unable to agree despite the conciliator’s assistance, the conciliator (who has been acting up to this point as a mediator) is asked to give his opinion as to what should be the terms of a settlement. This opinion is then presented to the disputants and, unless one or more of them rejects it within a specified time, it becomes their agreed settlement of the dispute.
Our Services
We support our clients in the construction industry in the following areas in relation to Conciliation:-
- Selection of the suitable Mediation Institutions for conciliation and the appropriate model clauses during the early stages of the Contract drafting to suit the project.
- Provide guidance, support and advice on the key appointments of conciliators with both parties’ consent.
- Provide guidance, support and advice throughout the conciliation process as client’s adviser.
- We, with the consent of both parties and where there is no conflict of interest, also act as conciliators in an ad-hoc conciliation.
