The main roles of the Engineers Ireland Dispute Resolution Board (DRB) are to:
- Contribute to Objective 6 of the Engineers Ireland Statement of Strategic Intent 2021-2023, 'Safeguarding Professional Standards in the public interest' by promoting and managing the maintenance of standards of excellence in dispute avoidance and dispute resolution at Engineers Ireland.
- Manage the applications for and membership of the four Engineers Ireland dispute resolution panels (mediators, conciliators, adjudicators and arbitrators).
- Draft, review and update the Engineers Ireland dispute resolution procedures.
- Hold CPD events (seminars and conferences) and training.
The 10-member DRB intentionally comprises a broad representation of the construction industry in Ireland including consultants, contractors, public servants, solicitors and dispute resolution professionals who are both members and non-members of Engineers Ireland.
The diverse membership of the board membership provides a broad insight into the construction industry and dispute activity. The insight of the DRB is that the number of disputes in the construction industry in Ireland is increasing, and is expected to do so for the foreseeable future (independently of Brexit and/or Covid-19 related matters).
Over the past three years the DRB has:
- Published ‘Private Sector Contract (PSC) for Building and Engineering Works designed by the Employer’, a new form of contract suitable for all medium to large-scale building or civil engineering works in Ireland, where the design of the project has been provided by the employer, ie, the client. This was a collaborative work with the Construction Industry Federation (CIF) and the Society of Chartered Surveyors Ireland (SCSI).
- Conducted a detailed survey of panel members and users of the panels and services.
- Drafted and published of an updated mediation procedure.
- Reinstated the pupillage scheme and prepared a revised procedure.
- Held CPD events and published articles.
The DRB and Engineers Ireland seek to offer panels which have depth and breadth of experience to meet the needs of the construction industry. We are pleased that the number of applications for and appointments to the four panels has increased in recent years:
(Note: Several individuals are members of more than one panel. The total number of individuals who are panel members is 28.)
Presidential appointments may be used when neither party can agree upon an expert to examine a dispute. In this scenario one of the two parties, with the agreement of the second party, applies to the president of Engineers Ireland to appoint a mediator, conciliator, adjudicator or arbitrator (there is a charge of €500 for presidential appointments).
The chair of the Dispute Resolution Board, as the president’s proxy, will then appoint a suitable member from the relevant dispute resolution panel.
The DRB welcomes questions, feedback and requests from Engineers Ireland members so that it continues to meet the aims and aspirations of Engineers Ireland and its members.
For further details see the Engineers Ireland web page: Dispute Resolution Board | Engineers Ireland
How users rate dispute resolution procedures and panels: Highly, but new blood and diversity are issues
In late 2019, the chair of Engineers Ireland’s DRB wrote to professionals involved in construction disputes, seeking users’ feedback on the quality of the organisation’s panels of arbitrators, adjudicators, conciliators and mediators.
Of 120 professionals surveyed, 59 responded. They said they had been involved in 166 construction conciliation, arbitration, adjudication, and mediation cases over the previous five years (2015 to 2019), and used Engineers Ireland panel members as independent neutrals in 107 of the 156 cases.There is bound to be some double counting in both figures, where more than one survey respondent was involved in the same case.
It is interesting to note that Engineers Ireland panel members served as 'independent neutral' in more than two-thirds of the cases in which respondents were involved. Indeed, more than 40% of the respondents said an Engineers Ireland panel member had been engaged in more than 80% of their cases in the five-year period.
On the other hand, a quarter said that a member of the Engineers Ireland panels acted in fewer than 20% of their cases – one might speculate that these respondents worked mostly on building disputes.
As detailed in table 1, the cases spread across all four of the dispute resolution processes for which Engineers Ireland has panels: conciliation (including working with a standing conciliator), arbitration, adjudication, and mediation.
On average, respondents had been involved in a little more than two conciliations with Engineers Ireland panel members, and between one and two instances of working with a standing conciliator, adjudication and mediation.
One respondent’s recommendation reflected the popularity of conciliation. "Do more to promote the use of conciliation in Ireland. It is an excellent process and Engineers Ireland is at the heart of it."
Appointment process
In most cases respondents were able to get an independent neutral without asking the president of Engineers Ireland to appoint one. This varies among the processes, with presidential appointment in 25% of ad hoc conciliations and 21% of arbitrations, but much fewer for the other procedures.
The president made three adjudicator appointments. Engineers Ireland panel members were appointed as adjudicator in 13 other adjudications involving survey respondents, either by agreement of the parties or by the chair of the minister’s panel.
So presidential appointment plays a relatively minor part in how independent neutrals are engaged for dispute resolution work. A respondent observed: "Generally, much prefer word of mouth recommendations of good mediators/conciliators on the panel rather than leaving it to the president to decide."
That is consistent with the authors’ experience.
One respondent was concerned about finding a suitable panel member: "It can be difficult to ascertain which member is most suited to the subject matter of the dispute arising."
Ratings of procedures and panel members
Respondents were asked to rate the Engineers Ireland procedures, the appointment process, the quality of panel members, and diversity and choice of panel members. Chart 1 shows the responses.
On the first three, more than 80% of ratings were ‘good’ or better. Respondents said:
"It appears to me that Engineers Ireland takes disputes procedures and panels more seriously, and approaches them more professionally, than the other professions. The panels have a higher average level of quality than those maintained by the other professions, and none of the other bodies have taken such pains to produce considered dispute resolution procedures."
"Overall, Engineers Ireland has the strongest panel. There will always be dispute resolvers with different strengths and, only occasionally, has performance been below or outside what would expect."
"Other than the one or two persons I would not rate as chairs (and I am certain there is nothing you can do about that) I rate Engineers Ireland's panels very highly."
"The quality of the members is good but the approach varies considerably."
A total of 2% of respondents rated the procedures and appointment process as ‘poor.’ A total of 4% rated the panel members’ quality as poor. There were a few negative comments. One said:
"The uncertainty as to the 'suitability' of institutionally appointed arbitrators/adjudicators remains a significant concern in the market."
Another was more blunt:
"Too old, lazy and no appreciation of the importance of cash flows."
Others referred to the need for new (and younger) blood:
"Age profile of panel members experienced in transport-related disputes may lead to shortfall of suitable panel members in the future – this should be addressed."
"Would be good to see new faces, and some excellent panel members appointed more frequently."
"Age profile needs improvement."
"Bring new members onto all panels."
"Keep retirees away from it."
Choice and diversity
As chart 1 shows, the panels received lower ratings for choice and diversity. While 63% of respondents gave ‘good’ or better ratings under this head, 23% rated the choice and diversity as ‘average’ and 14% as ‘poor’. Some thought this reflects the industry:
"I rated diversity as average because I think it is about the same as all other appointing bodies, that is dominated by middle-aged white men but with a few who do not fall within that category. Certainly it reflects the industry accurately, so perhaps that makes it very good, I do not know what you are driving at."
"I believe the diversity of the panel is average – it broadly consists of members of the profession with additional legal or dispute resolution qualifications. It is also predominately male, and contains few members who are less than 40 years old."
Of course, diversity has many aspects, and it clear from the comments that respondents were concerned with different aspects. Some were concerned that panels are too small and too similar:
"Small pool to choose from."
"Similar backgrounds."
"Widen the panel choice – horses for courses!"
"Predominately middle-aged male with similar backgrounds."
One respondent noted that, in particular the mediator panel was too small: "The mediators panel is far too short. There needs to be a significantly larger panel in this area."
On gender, one respondent observed pithily: "One woman?"
There were also concerns about lack of diversity in industry background.
"Very few members come from a contractor [building or civil] background."
"There is a lack of young members (<50years). There is a lack of members from contracting background."
". . . too many from the consultant/and employer field and not enough from contracting. About 70% are from consultant-employer fields."
"More conciliators from contracting background would be an improvement."
"More panel members should have experience as contractors."
"Not great range of choice – few from public sector."
Some respondents saw a need for more specialised panel members (and panels): "Engineering now more specialised, lack of corresponding specialist."
"More specialists from energy, energy markets, M&E, with perhaps specialist panels or disciplines indicated."
"Perhaps some more technical experience diversity on the panels, eg, heavy M&E, rail [heavy and light rail], power generation and maybe include more civil engineering surveyors on panels."
"Divide the panel into the various disciplines based on their work experience."
"The creation of a super panel of experienced practitioners, with an established strength in the legal and procedural spheres, to deal with larger value/more complex legal disputes."
Some thought that the panels should have more legal expertise: "The panel is overly weighted with Irish engineering professionals who do not have sufficient experience as third party neutral. There should be a wider choice and more lawyers."
"Lack of qualified lawyers which limits appointments or keenness to apply. With no disrespect to those on the panel sometimes concern could be that focus is on industry members rather than legal members. Often industry understanding is exactly what is required, but often not. There also may be a non-specialised, ie, client plaintiff suspicion."
"There needs to be serious consideration given to the panel being more legally focussed so that if there is a case that has important points of legal interpretation that there are options."
Three more comments on this area, each covering a number of aspects:
"Refresh the panel by getting younger but still experienced neutrals, include more women, more lawyers onto it."
"Radical thinking needed to refresh the panel, bringing younger but still experienced practitioners across all disciplines onto the panel."
"[Roll] out a suitable and effective pupillage scheme. Ensure that members are not all Dublin based only. Actively engage with potential members from a contracting background. Get younger people involved early."
Diversity is an issue with how users appoint neutrals, as well as with who is on the panels. Several respondents referred the comfort factor with a known quantity.
"Panel members that don't seem to practise often may not be getting appointments by agreement of the parties [the market will tend to identify and use the best practitioners, and return to them and recommend them time and time again]."
"Our experience has generally been good because we know the individuals we are engaging. However, that narrows the pool of individuals we would be prepared to appoint. Parties like to reduce the risk of the dispute resolution by appointing someone they know."
"Pool of tried and tested is relatively small – high risk to utilise other options."
Panel members specifics
Respondents were also asked to rate panel members in five specific areas. Between 80% and 90% gave ratings of ‘good’ or better in all five areas, as shown on chart 2.
There were a few adverse comments on panel members’ training, expertise, and preparation:
"Start training your conciliators at regular intervals. A few years back you nominated a conciliator on a €2m dispute on a PWC contract. He had no knowledge of the PWC and did not read the submissions."
"The importance of preparation and reading materials provided in advance of any meetings with the parties so as to provide confidence that the conciliator/mediator is familiar with the issues . . . so as to avoid time wasting in the process."
"Tell them to look through the items properly and in detail."
"More scrutiny of performance and more information on actual expertise of panel members – some are really not very good at basic legal principles."
Some respondents thought that the approach taken by some panel members (in conciliation, in particular) was insufficiently grounded in the contract.
"Need to adhere to the requirement to base recommendations on the rights and obligations of the parties under the contract."
"Panel members are too focused on trying to get the parties to agree rather than doing a recommendation.(1) Recommendations are sometimes done in a way that will be acceptable to the paying party rather than on the parties’ rights and obligations."
"Panel members should be encouraged to be less focused on finding a compromise rather than adherence to the contract between the parties."
"My experience is primarily with the conciliation process under the PWC and based on that experience I believe that, with just a few exceptions, there is too much leeway allowed by conciliators for contractors to introduce highly generalised arguments without substantiation. I have also experienced a small number of conciliators who from the outset lay down very clear markers to contractors that all claims must be supported by clear evidence of extra costs and of employer's liability for those costs."
One respondent observed that panel members "[s]hould have an adequate construction law qualification".
Other suggestions
Some other specific suggestions emerged from the survey. Pupillage has already been mentioned. In fact, Engineers Ireland has had a pupillage scheme in place for several years. The DRB is currently reviewing it.
Another respondent referred to an "active mentoring programme where new panel members 'shadowed' the more experienced members for a number of disputes which progressed to hearings".
Another suggested that Engineers Ireland directly seek feedback from participants after each process. Related to diversity, another said: "Deal with discipline/career bias".
Conclusion
It must be remembered that dispute resolution services are provided by independent neutrals, not by Engineers Ireland. The institution’s role is to publish (and update) procedures, select panel members, provide training, and appoint independent neutrals when so requested by disputants.
Overall, the responses show a high degree of satisfaction with the panels and the procedures. But there is work to be done, in particular to widen the composition of the panels, and ensure that the dispute resolution procedures, panel members, and Engineers Ireland itself are responsive to the changing needs of users.
The Dispute Resolution Board is grateful to the 59 who participated in the survey.
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