New Dispute Resolution Board appointed for three-year term
04 April 2013
A new Dispute Resolution Board (DRB) has been appointed for a three-year term of office, from 2013 to 2016. Three new members – Ger Bythell, Jerry Grant and Niav O’Higgins – have been added to the Board, which continues the traditional balance of engineers from the construction industry with legal practitioners.
The function of the DRB, as set out in its terms of reference, is to “formulate the policies and procedures relating to dispute resolution in the engineering industry”. While this definition of the Board’s role is very widely drawn, in reality its work tends to be focused on the construction industry – with particular emphasis on civil engineering work and contracts.
Traditionally, the work of the DRB – whose members are appointed by Engineers Ireland – has been in four areas. The first is the production of procedures covering all aspects of dispute resolution. Engineers Ireland currently has seven such procedures: three of them deal with arbitration, two with conciliation, one with mediation and one with pupillage. The procedures are:
• Arbitration Procedure 2011 for use with the Arbitration Act 2010;
• 100 Day Arbitration Procedure, which is an accelerated arbitration procedure for use with the Arbitration Act 2010;
• Conciliation Procedure 2000 for use with all contracts other than the GCC suite;
• Conciliation Procedure 2007 for use with the GCC Forms of Contract;
• Mediation Procedure 2011 suitable for use in all disputes; and
• Pupillage Procedure, which is intended to allow for the mentoring of persons seeking experience in dispute resolution processes.
The DRB’s second area of activity is the maintenance of panels of persons suitable for appointment as arbitrators, conciliators or mediators. These panels are open to all suitably qualified and experienced persons; they are widely used as reference documents by parties seeking to agree the appointment of a neutral third-party, to handle their dispute. The current panel of arbitrators contains 21 members, while the conciliators panel has 33. The panel of mediators has five members. In the case of the panel of arbitrators, five are based outside of Ireland and it includes three architects, one solicitor and three surveyors.
The third area of activity of the DRB is in the appointment of an arbitrator, conciliator or mediator where the parties cannot agree, but have provided for such an appointment to be made by the president of Engineers Ireland. Where such a request is received, it is normally passed to the DRB to make a recommendation for a presidential appointment.
The final area of DRB activity is in training and information events for Engineers Ireland members, but also more widely for all those involved in the construction industry.
The outgoing DRB, which served from 2009 to 2012, brought about several significant changes, the most significant being to move the business of the Board almost entirely to a web-based system.
Details of all panels, procedures and accompanying documents are now freely available on the Engineers Ireland website and can be downloaded for those seeking information or to use the procedures. In the case of panel members, CV details are given in all instances. The old system of providing procedures in hard-copy format for a fee has been discontinued. However, the Board has managed to make itself self-financing as a result of fees for presidential appointments, annual contributions by panel members and also for the use of Engineers Ireland procedures by a panel member when not appointed by the president. The number of panels has been rationalised and a panel of mediators has been introduced.
There has been significant work in the past three years in relation to procedures. The Arbitration Act 2010 significantly updated the old Arbitration Act 1954 and brought Irish arbitral law into line with leading international practice. In 2011, the Board introduced the Engineers Ireland Arbitration Procedure 2011, to be used specifically with the new Act. To date, this is the only such procedure written for use with the new Act. In addition, a companion procedure, the Engineers Ireland 100 Day Arbitration Procedure, was written to allow for speedy and cost-efficient resolution of disputes amenable to such an approach.
The two new Arbitration Procedures, together with the Mediation Procedure 2011, were launched by Mr Justice Peter Kelly of the High Court in July 2012 and since then, there is increasing acceptance and use of these procedures. The Pupillage Procedure was introduced in an effort to assist persons with suitable qualifications and experience who are finding it difficult, if not impossible, to obtain experience in dispute resolution work. Since then, the Board has established a panel of pupils and asked all of the panel members to consider taking on a suitable pupil when engaged in any dispute resolution process.
The DRB has worked to maintain good relations with all who are involved in the construction industry or, indeed, anywhere in the engineering sector likely to use its dispute resolution services. In the past three years, it has engaged with those promoting the Construction Contracts Bill 2010, which is currently before the Oireachtas, and which is intended in introduce statutory adjudication into the Irish construction industry. The Board has been involved in the organisation and running of seminars/workshops touching on this and also the existing dispute resolution processes.
While the precise nature of the changes to be brought about by the new legislation are not yet clear, it appears certain there will be a rapid form of binding, but not final, method of resolving disputes available at all times during a construction contract. This form of adjudication will most likely be based on that used in the UK since 1998, although with some modifications to take account of the particular nature of the Irish construction industry.
If so, this will effectively mean the end of conciliation which has been the main dispute resolution process in this country since the early 1990s and which, it is generally accepted, has served the industry well. It is likely that arbitration will continue as the process to achieve final resolution following the adjudicator’s determination, although there is also the possibility of referral to litigation. Mediation has been growing in popularity in recent years and it is likely that this will continue in use, although possibly on a somewhat limited basis, even after the introduction of adjudication.
The introduction of adjudication is likely to give rise to work for the DRB in two separate fronts, the first being the possible need for a procedure setting out details of the process, while the second will be the need to establish a panel of adjudicators competent to carry out the work as and when it arises.
The Bill, as currently drafted, envisages a national panel of adjudicators. It is likely that, initially at least, those working as adjudicators will be persons with suitable qualifications who are already experienced as arbitrators and/or conciliators. Such persons, however, will require significant training in the form of a conversion course to provide them with the skills and knowledge to deal with disputes under the specific requirements of adjudication. The Board is already in discussions and has drafted plans for such a conversion course. It will proceed to offer such training once the final details of adjudication are clarified in the legislation.
The full membership of the 2013-2016 DRB is:
• Ciaran Fahy, Chartered Engineer, FIEI, Chairman
• Ger Bythell, Chartered Engineer, FIEI
• Tim Ahern, Chartered Engineer, FIEI
• John Duggan, Chartered Engineer
• Siobhan Fahey, Chartered Engineer
• Hank Fogarty, Chartered Engineer
• Jerry Grant, Chartered Engineer, FIEI
• Anthony Hussey, solicitor
• Harry Meighan, Chartered Engineer, FIEI
• Niav O’Higgins, solicitor
Ciaran Fahy is a chartered engineer, chartered arbitrator and an accredited mediator. He is a member of several panels including those of Engineers Ireland and the FIDIC President’s List of Adjudicators. Fahy acts frequently as arbitrator, conciliator or mediator. He has chaired the Dispute Resolution Board of Engineers Ireland since 2009.