Resolving Disputes

With effective communication, most disputes are avoidable. It is important throughout the design process, that all parties keep each other informed of anything and everything that happens, and to do it in writing.

Should you find yourself in the unfortunate position of being in a dispute, some points you may wish to consider are;

• Respect each others point of view.

• A dispute is often a difference of opinion as to the way something was done or not done, and therefore subjective.
  

In most cases the Contract of Engagement sets out the procedure for dealing with unplanned matters including simple disputes. Where arbitration is stated in the Contract of Engagement as the means of settling disputes, it must be followed. There have been cases where dispute has gone before the Courts, only to have the Judge send it back for the contracted arbitration.

The common methods used in dispute resolution are:

• Investigation. This is used to try and find the facts, and assemble these into chronological order. Occasionally, an independent recital of the facts, allows one or both parties to re-consider;
  

• Amelioration. A carefully constructed, but factual, explanation by a third party to the disputing party or parties as to circumstances genuinely affecting the performance complained of.  This may satisfactorily end the dispute positively; 
  

• Comparative. Otherwise known as the peer review test. It is only applicable where the value, in terms of fitness for intended purpose, is in dispute. Here a certified sample of the work done, commonly drawings etc, is blinded (the designers identity is removed) and the drawings etc are sent to a comparative practitioner in the role of an anonymous peer reviewer. A report is made by the peer reviewer and a copy of this report is given to both parties. For this type of dispute, this process has a high success rate.
  

In cases where the practitioner is a Licensed Building Practitioner, there is also the complaints process administrated by the Department of Building & Housing. Information can be found at http://dbh.govt.nz/lbp-about-the-scheme#aid4

Notwithstanding the above, in certain circumstances recourse may be sought under the Consumer Guarantees Act, the Fair Trading Act, the Building Act, or the Sale of Goods Act.

If the dispute is unable to be resolved through the methods above, and the dispute is within the jurisdiction of the Disputes Tribunal, it is suggested that parties seek help there.

If the dispute is outside of the jurisdiction of the Disputes Tribunal, then it has to be placed with the District Court, and lawyers will be probably be engaged for each of the litigants.  A point worth noting is that Courts by and large will give judgement according law, which does not necessarily equate to fairness.