Dispute Resolution

Given the nature of engineering and construction projects it is not unusual for disputes to arise. Engineers Ireland plays a significant role in dispute resolution.

The objective of our ten-member Dispute Resolution Board, which consists of Chartered Engineers and solicitors, is to express Engineers Ireland policies and procedures relating to dispute resolution in the industry.

The current Board was appointed for a three-year term by the Council of Engineers Ireland. It is comprised of the following members:

The current board was appointed for a three year term by the Council of Engineers Ireland. It is comprised of the following members:

Ger Bythell - Chartered Engineer & Chair

Siobhan Fahey - Chartered Engineer

Tadgh McDonnell - Chartered Engineer FIEI

Ciaran Fahy - Chartered Engineer FIEI

John Mitchell - Chartered Engineer

Colin Cleary - Chartered Engineer FIEI

Gerry Galvin - Chartered Engineer FIEI

Eamon Conlon - Solicitor

Patrick Grennan - Chartered Engineer FIEI

Niav O Higgins - Solicitor

Engineers Ireland maintains panels of Arbitrators, Conciliators, Mediators and Adjudicators. Details of the panel members are available to view below. It is the general policy of Engineers Ireland and the Board to make its documentation and services available free of charge. Exception: Charge of €500 for Presidential Appointments.

The criteria for admission to each panel is set out in the relevant section of the dispute resolution process pages below. Panel members are required to notify the Board on an annual basis of their experience in the dispute resolution area together with relevant training undertaken by them. Panel members are required to pay an annual fee of €200 to the running and maintenance of the panels of which they are members.

Arbitration

Introduction

Arbitration, which has been used for centuries, is a process whereby the parties agree to refer disputes between them for resolution to an independent third party known as the Arbitrator. The agreement to do so normally forms part of the original contract between the parties but it is also possible to refer disputes to Arbitration after the differences have arisen between the parties. Any such Arbitration Agreement normally provides for the choice of Arbitrator to be made by the parties but, where they cannot do so, either party may ask an independent body, such as Engineers Ireland, to appoint the Arbitrator. Arbitration is a confidential process and gives the parties a significant degree of flexibility as regards the choice of Arbitrator and procedure. Its great advantage is that it leads to a final and binding resolution of the dispute by means of an Award.

Engineers Ireland Procedures

Arbitration is carried out within a legislative framework with the current Irish Act being the Arbitration Act 2010 which replaced the Arbitration Acts 1954-1998. Engineers Ireland published an Arbitration Procedure in 1987, for use with the 1954 Act, and this was subsequently updated as the Arbitration Procedure 2000. Engineers Ireland has launched two new arbitration procedures and both were specifically written for use with the 2010 Act. These comprise Arbitration Procedure 2011, which is intended as a replacement document for the 2000 procedure, and also 100 Day Arbitration Procedure, intended as a fast-track procedure.

Decisions

An Arbitrator’s Award has the same status as a Judgment or Order of the High Court and it is enforceable as such. It is not possible to appeal an Arbitrator’s Award and there are very limited grounds for challenge under Article 34 of the UNCITRAL Model Law adopted in the Arbitration Act 2010.

Panels/Appointments

Engineers Ireland maintains a Panel of Arbitrators whose details are available on this website. If the parties to a dispute are unable to agree on an Arbitrator the President of Engineers Ireland will appoint a suitable Arbitrator, normally from this Panel, on receipt of a suitable application. The Application Form and other useful documents in relation to Arbitration are available to be downloaded under the heading Associated Documents on this website.


Procedure documents

100 Day Arbitration Procedure

Arbitration Procedure 2011

Arbitration Procedure 2000

 

Associated documents

Application for the Appointment of an Arbitrator

Notice to refer

Notice to concur

Arbitrators model form of agreement

Eligibility Criteria - Engineers Ireland Panel of Arbitrators

Application for inclusion on list of arbitrators

Conciliation

Introduction

Conciliation is best considered as a settlement negotiation carried out between the disputing parties with the assistance of an independent neutral. To that extent it is very similar to Mediation but, whereas in Mediation the process is almost always facilitative, Conciliation is seen as evaluative on the basis that if the parties fail to reach agreement the Conciliator will put forward proposals for the settlement of the dispute in a recommendation. The parties are free to reject the recommendation.

Once appointed the Conciliator will take charge of the process and will require the parties to send him/her details of the dispute which will normally be circulated to the other side although the Conciliator is free to meet with the parties separately and to receive material on a confidential basis from any party. The Conciliator will convene a meeting of the parties where they will normally meet in joint session and subsequently the Conciliator will meet the parties in private sessions. The Conciliator is obliged to maintain the confidentiality of any information given to him privately and the purpose of his discussions with the party is to arrive at an agreed settlement.

Engineers Ireland Procedures

Conciliation has been widely used in the Irish Construction Industry since the mid 1990s and it is included in almost all the standard conditions of contract normally as a mandatory step prior to Arbitration. Engineers Ireland first produced a conciliation procedure in 1994 and this was subsequently revised and it is available on this website as Engineers Ireland Conciliation Procedure 2000. In addition to the above there is a second procedure, Engineers Ireland Conciliation Procedure 2007, specifically drafted to comply with Clause 13 of the New Public Sector Contracts introduced by the GCCC.

Decisions

Conciliation is a process which is entered into on a voluntary basis by the parties which means the process can be broken off at any point and equally they are not obliged to accept any proposed or recommended settlement. It is a confidential process carried out on a without prejudice basis which means that communications, documents etc. produced as part of the Conciliation are inadmissible in subsequent proceedings. The process is normally carried out to fairly strict time limits set out in the contract or in the procedure and in addition the parties almost always pay their own costs of the Conciliation and share the Conciliator’s fee and expenses. The parties are free to reject the Recommendation normally within a specified time frame but if they do not do so it becomes final and binding.

If settlement is not achieved the Conciliator will proceed to draft and issue a recommendation normally without reasons. Traditionally the approach adopted in such a recommendation, as set out in the Engineers Ireland Conciliation Procedure 2000, was the Conciliator's opinion as to how the parties can best dispose of the dispute between them and need not necessarily be based on any principles of common law or equity. The approach in the new Public Sector Contracts is radically different where the requirement is that the Recommendation is to be based on the parties rights and obligations under the contract.

 

Procedure documents

Conciliation Procedure 2000

Conciliation Procedure 2013

Pupillage Procedure 2011

 

Conciliation Procedure 2000 - Associated documents

Application for Appointment of a Conciliator

Conciliators model form of agreement

Eligibility Criteria - Engineers Ireland Panel of Conciliators

Application for inclusion on list of conciliators

 

Conciliation Procedure 2013 - Associated documents

Application for Appointment of Conciliator

Conciliator's Model Form of Agreement 2013

Eligibility Criteria - Engineers Ireland Panel of Conciliators

Application for inclusion on list of conciliators

Mediation

Introduction

Mediation is essentially a form of assisted negotiation where parties attempt to resolve their differences with the assistance an independent neutral known as the Mediator. The role of the Mediator is to facilitate these discussions which take place on a confidential and without prejudice basis. The process is voluntary; in other words the parties are not obliged to either attend or to partake in the process which is intended to allow for the exploration of a wide range of options, not necessarily confined to any contractual relationship between them, which means that there are solutions available in Mediation which are not available to a Judge or Arbitrator.

Mediation is generally seen as a speedy and relatively inexpensive process with many mediation hearings taking place over one day. The role of the Mediator is to help the parties explore their interests, strengths, weaknesses and needs in order to identify possible areas of accommodation or compromise. During the course of the mediation hearing the Mediator will normally meet with the parties either in joint session or privately. Information provided by a party in a private session is normally only to be divulged by the Mediator with the agreement of that party.

Outcome

Normally, at the conclusions of a successful Mediation, that resolution is set out in writing and signed as an Agreement. Mediation is in many ways similar to Conciliation except that it does not provide for a recommendation in the event of an unsuccessful outcome; it is generally seen as purely facilitative without any element of evaluation. In mediation each party is responsible for its own costs and the fees and expenses of the mediator are shared equally.

Engineers Ireland Procedures

Engineers Ireland has just recently published a Mediation Procedure and will shortly establish a Panel of Mediators. The Mediation Procedure, together with accompanying documentation is available on this website and details of Panel members will also be made available there. When requested to do so, the President of Engineers Ireland will appoint or nominate a suitable Mediator, normally from that Panel.

 

Procedure documents

Mediation Procedure 2011

 

Associated documents

Mediator's Model Form of Agreement (2012)

Eligibility Criteria

Application for Inclusion on Panel of Mediators

Adjudication

Introduction

Adjudication is a Dispute Resolution process whereby an independent neutral, the Adjudicator, decides the issues in dispute within a predetermined, usually very short, time limit which can be extended. The Adjudicator's decision is binding on the parties but it is not usually final at that time unless the contract so provides. Adjudication may be contractual or statutory as in the UK where it was introduced by Part 2 of the Housing Grants, Construction and Regeneration Act 1996. Adjudication came into effect in the UK generally in May 1998 and was extended into Northern Ireland in June 1999. Its introduction is normally seen as a response to the Latham Report of the early 1990s known as Constructing the Team and which identified cash flow as a major problem within the Construction Industry.

Engineers Ireland Procedures

Engineers Ireland has not published and Adjudication Procedure. There is no provision for Statutory Adjudication in this country although there are several instances of the process being used on a contractual basis.

Decisions

The distinguishing feature of Adjudication is the tight time frame within which the decision is provided. In the UK this is normally twenty eight days from the time the dispute is referred to the Adjudicator although there is provision to extend this. It is sometimes said that the process confers an unfair advantage on the referring party and it is also generally accepted that it has shifted the balance of power between the party seeking payment and the party resisting payment.

It should also be noted that the process known as Conciliation set out in Clause 13 of the New Public Sector Contracts is very similar to Adjudication because of the binding but not final nature of the recommendation. In order to achieve a final resolution Adjudication is frequently used in Contracts with provision for Arbitration, or possibly litigation, subsequently if the parties are unhappy with the decision.

Panels / Appointments

Engineers Ireland does not maintain a Panel of Adjudicators. However the organisation lists several members who are qualified and experienced in this area and if required the President of Engineers Ireland will appoint or nominate a suitable Adjudicator where a contractual dispute has arisen.


Associated documents

Application for Inclusion on Panel of Adjudicators

Application for the appointment of an Adjudicator

The Panel of Adjudicators Eligibility Criteria (2019)

Expert Determination

Introduction

Expert Determination is a Dispute Resolution process where matters in dispute are referred for decision to an independent neutral, the Expert. It is based on contract rather than statute and the Expert is normally chosen on the basis of expertise in the area of the dispute.

Expert Determination is potentially the cheapest and quickest form of Dispute Resolution particularly in technically complex areas. Consequently there is increasing interest in this Dispute Resolution method in high-tech areas or industries such as IT, pharmaceuticals, chemicals etc.

Engineers Ireland Procedures

Engineers Ireland has not published an Expert Determination Procedure.

Decisions

The Expert's decision is normally final and binding unless indicated to the contrary in the contract. In that context it is somewhat similar to Arbitration or indeed litigation but the fundamental difference is that the Expert normally has much more procedural scope than an Arbitrator or a Judge. The Expert is not normally bound by all the rules of Natural Justice and is frequently encouraged to rely on his own knowledge or investigations without reference to the parties.

Panels / Appointments

Engineers Ireland does not maintain a Panel of Experts. However, the President of Engineers Ireland is prepared to nominate or appoint suitable persons, as Expert, if requested to do so, from the membership of the Institution which covers all of the engineering disciplines.

 

Associated documents

Expert Determination Procedure 2014

Dispute Boards

Dispute Boards is the generic name or term used to include Dispute Resolution Boards, Dispute Adjudication Boards, Dispute Review Boards, Dispute Review Panels and Dispute Conciliation Boards among others. No matter what term is used a Dispute Board is normally a group of experienced professionals engaged by the parties during the course of a contract in order to issue speedy recommendations and/or determinations in respect of matters referred to them.

Such Dispute Boards are normally associated with large projects and while they frequently comprise three persons it is by no means uncommon to have a one person Dispute Board. Ideally such boards are appointed at the outset of a project and follow its progress through being copied with much of the contract documentation and also by carrying out regular site visits. The intention is that the Dispute Board is familiar with every aspect of the contract and also the parties. Depending on the contract provisions the Board will deal with issues as and when they arise either by means of non binding recommendations or by binding determinations. Such determinations of the Board will be subject ultimately to Arbitration or some other final determination.

Normally any party can refer a matter to the Board at any time for a recommendation or a determination within a relatively rapid time frame. Because of the involvement of the Dispute Board from the start of the project it is frequently seen as more of a dispute avoidance than a dispute resolution process. In the past Engineers Ireland has provided training for those interested in appointment to Dispute Boards and for some years maintained a separate Panel of suitable persons. Engineers Ireland has several suitably qualified and experienced persons available for this work on its panels of arbitrators and conciliators and the President of Engineers Ireland will appoint/nominate if requested to do so.

Join a Panel
If you are interested in joining a Dispute Resolution Panel, you can apply online through your member dashboard. If you are not a member, get in touch with our Registrar, Damien Owens, for more information: (01) 665 1333