The purpose of the TeCSA ADR Protocol is to facilitate and encourage the use of Alternative Dispute Resolution (“ADR”) amongst users of the Technology and Construction Court (“TCC”) in litigation, arbitration and other non consensual proceedings where appropriate and potentially beneficial to the parties in the context of the dispute between them.
A set of mediation rules has been drafted to complement this Protocol.
Technology and Construction disputes are generally acknowledged to be amongst the most complex and expensive actions to pursue in litigation and/or in arbitration. This is the result of the combination of complex technical issues, the voluminous documentation, the detailed and technical evidence involved and the substantial sums at stake in cases of this nature. For this reason, ADR (and other related forms of dispute resolution such as Adjudication and Expert Determination) is a very attractive and effective technique for resolving technology and construction disputes in a speedy, efficient and cost effective manner.
The manner in which cases are allocated to a particular Judge of the Technology and Construction Court and the way in which those Judges typically manage the disputes before them also gives scope for the Court to encourage the parties and their advisers to consider the ADR options.
1. WHAT THIS PROTOCOL COVERS
1.1 While ADR covers a whole range of consensual1 dispute resolution techniques from mediation to mini-trials, this Protocol focuses upon the most common techniques that members ought to review with their clients as follows:-
1.2.1 Mediation - effectively a structured means of facilitated negotiation aimed at achieving a negotiated settlement which is acceptable to both parties. The parties are assisted in their negotiations by a third party, a “neutral” mediator who will discuss the issues with the parties in open and private sessions, assist the parties to understand the strengths and weaknesses in their positions2 and identify avenues for settlement which often involve issues and options outside the immediate matters in dispute.
1.2.2 Early Neutral Evaluation (“ENE”) - the use of a third party neutral expert to give a non- binding opinion on technical or legal issues which are likely to assist the parties in settling their dispute.
1.2.3 Mini-trial - a non-binding without prejudice process in which each party presents its case to a tribunal consisting of the Managing Director (or other senior board member) for each party plus a Third Party Neutral. Following the presentation, the Managing Directors and the Third Party Neutral retire to evaluate the parties’ prospects with a view to settlement.
This list is not intended to be exclusive and in particular cases it may be appropriate to adapt procedures.
1.3 TeCSA members should consider with their clients whether the particular case is suitable for Mediation, ENE or Mini-trial as soon as practicable after they have been instructed.
Many of the cases that come before the TCC or are referred to Arbitration may be suitable for resolution by ADR using either Mediation, ENE or Mini-trial. The following briefly describe some of those TCC cases which may be particularly suited to the use of ADR:
1.3.1 Cases where the amount of costs that will be incurred in litigation or arbitration in determining the matters in dispute are disproportionate to the amount in issue. Any case where the legal and expert costs of the respective parties may exceed the amount claimed would be in this category.
1.3.2. Multi party disputes; these cases often fall within the ambit of 1.3.1 above. However they are also particularly suitable because resolution of multi party disputes is difficult using traditional positional bargaining strategies.
1.3.3 Claims where the potential paying party may not be able to pay its costs of defending the claim and/or satisfy the prospective judgement against it.
1.3.4. Disputes where the parties have apparently reached entrenched and opposing positions following investigation of the law or the evidence. ENE or Mini-trial techniques may provide guidance as to the parties’ prospects and facilitate early resolution.
1.3.5 Claims that may take an extended period to resolve because of their complexity. The uncertainty associated with delayed resolution may be highly prejudicial to the interests of one or both the parties. ADR may substantially speed up resolution.
There are some circumstances where use of ADR may not be appropriate for example where:-
- The parties require a binding precedent.
- The Claimant urgently needs an injunction
- A party requires a decision of the Court or Arbitrator for Vires reasons.
2. NOTICE OF INITIAL POSITION ON ADR
Subject to complying with the provisions of any relevant Court Protocol3 or Arbitral Rules Solicitors should:-
2.1 advise their clients on the suitability of ADR before any Pre Action Meeting required under any Court Protocol, and
2.2 consider the appointment of an independent chairman for the Pre Action Meeting, typically a practising Solicitor specialising in TCC work with more than 10 years experience4,5, and
2.3 notify the other parties or their appropriate representatives in writing whether they consider the dispute suitable for ADR as soon as practicable, and
2.4 in any event notify ADR suitability or otherwise at the latest 7 days before Case Management Conference or Preliminary Meeting.
2.5 if a case is considered unsuitable for ADR give reasons.
2.6 if a case is considered suitable for ADR set out the form of ADR and relevant rules proposed (see paragraph 5 below).
3. CASE MANAGEMENT CONFERENCE/PRELIMINARY MEETING
3.1 The Solicitors should confirm to the Court/Arbitrator at the Case Management Conference/Preliminary Meeting that ADR has been considered and explain the conclusion reached giving reasons as appropriate, making reference to the notification referred to in paragraph 2 above.
4. SELECTION OF NEUTRALS
4.1 Parties should endeavour to agree the neutral within 7 days of agreement in principle to use ADR.
4.2 If the parties are unable to agree on the neutral then they should agree on an appointing body within 7 days of such failure to agree. There are many appointing bodies now in operation who will nominate a Mediator - the following are included for ease of reference. Most will also provide names and contact details for suitably trained mediators for the Parties to make their own arrangements:
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Technology and Construction Solicitors Association (TeCSA) |
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CMS CameronMcKenna |
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Tel |
0207 367 3000 |
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Fax |
0207 367 2000 |
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ADR Chambers UK & Europe |
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City Point |
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Tel |
0845 072 0111 |
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Fax |
0845 072 0112 |
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Centre for Dispute Resolution (CEDR)(5) |
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International Dispute Resolution Centre |
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Tel |
0207 536 6000 |
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Fax |
0207 536 6001 |
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Web |
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Chartered Institute of Arbitrators |
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International arbitration Centre |
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Tel |
020 7421 7444 |
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Fax |
0207 404 4023 |
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Web |
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Faculty of Mediation and ADR |
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3 Gray’s Inn Square |
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Tel |
020 7637 0333 |
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Fax |
020 7637 1893 |
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Institution of Civil Engineers |
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1 Great George Street |
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Tel |
020 7222 7722 |
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Fax |
020 7222 7500 |
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Web |
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Resolex |
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70 Fleet Street London EC4Y 1EU |
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Tel |
020 7353 8000 |
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Fax |
020 7936 9237 |
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Web |
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5. RULES
In most cases the TeCSA Mediation Procedure Rules are suitable. However, if an application to an appointing body is necessary it may be appropriate to use their rules. Solicitors should not seek (and should discourage their Clients from seeking) to impose preconditions upon their participation in any ADR process or on the appointment of a Third Party Neutral.
6. REPORTING TO CLIENTS
Solicitors should advise their clients and report to them within 7 days in relation to any suggestions made by any party connected with the proceedings that a matter may be suitable for/not suitable for ADR at that time or at other some point in the proceedings.
7. COST CONSEQUENCES
7.1 Parties will be entitled to ask the Court when considering the reasonableness and/or proportionality of costs incurred by either party either on a summary assessment of costs or in the context of the costs assessment at the conclusion of proceedings to take into account of whether or not the case was suitable for ADR and any open correspondence written on that subject.
7.2 Parties should not refer to the conduct of the ADR process itself or any without prejudice correspondence or statements made either by it or by any other party or the Third Party Neutral.
7.3 Parties should not be entitled to refer to discussions on the possible use of ADR techniques in connection with applications for Security for Costs.
7.4 The costs of considering ADR (even if it is decided that ADR is not suitable or appropriate) should be recoverable subject to the usual rules on reasonableness and proportionality.
8. TRAINING
TeCSA does not currently offer training in the use of ADR techniques. There are many organisations (see paragraph 4 above) that currently offer training courses on ADR and Solicitors are encouraged to ensure that all staff undertaking work in the TCC are appropriately trained in the use of ADR techniques.
THE TECHNOLOGY AND CONSTRUCTION SOLICITORS ASSOCIATION
The Technology and Construction Solicitors Association (“TeCSA”) (formerly known as the Official Referees Solicitors Association, ORSA) was formed in September 1990 to promote the interests of solicitors and their clients conducting business in the Technology and Construction Court (which at that time was known as the Official Referees’ Court) and related domestic and international arbitration.
In 1998 TeCSA formed an ADR Sub-Committee to promote the use and understanding of ADR in resolving disputes involving technology and construction matters. In October 1998, CEDR (Centre for Dispute Resolution) reported to TeCSA on definition and recognition of cases suitable for ADR and from these initiatives this Protocol has been developed. TeCSA recognises that protocols such as this one are best tested in practice and revised through use and experience. Accordingly, criticisms, observations and suggestions are welcome, and these will be considered for inclusion in subsequent versions; please address them to Charles Gardner at cec.gardner@ntlworld.com
TeCSA and its members take no responsibility for loss and damage caused to any user of the Protocol.
1 Therefore Adjudication and Expert Determination fall outside the scope of this Protocol although they are often worth discussing with the client.
2 This may extend in appropriate cases to giving an indication of perceived merits to a party in private session.
3 In many cases it will be appropriate to follow the draft TCC pre action protocol that requires consideration of ADR at the pre action meeting.
4 TeCSA will provide names on request.
5 CEDR does not publish a list of Mediators.