Guide to Using the RIBA Professional Services Contracts 2018 - Other - Page 70
Contract terms
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defensive strategy, the Architect/Consultant should consider the likely outcome and
act accordingly. In any case, they should keep their insurers informed.
Whatever the cause of the dispute, detailed records prepared by the Architect/
Consultant will be a vital resource. As soon as a problem arises, identify and, if
appropriate, collate the relevant information.
Before completing item K of the Contract, the Architect/Consultant should agree with
the Client the ways in which they intend to deal with any disputes, although both of
them will hope that there won’t be any.
On commercial Contracts the Scheme for Construction Contracts (England and
Wales) Regulations 1998 as amended applies, which gives a statutory right to
adjudication for both parties. Note that if arbitration is not included as one of the
agreed procedures, the final resolution of any dispute shall be decided by the
appropriate court.
On domestic projects the situation is slightly different in that, if no ADR options are
selected then disputes are automatically referred to mediation in the first instance
and then to the courts if necessary. In a contract with a consumer Client, the Client
has the right to refer any dispute to the courts but may attempt to settle the matter
by negotiation or mediation. The court will look favourably on any demonstration that
the Parties have attempted an ADR method prior to any legal proceedings. The use
of any processes, other than legal proceedings, must be negotiated, but only the
Client can make the decision to use arbitration.
How can the RIBA help?
To assist in the resolution of disputes, the RIBA provides the following ADR
processes to parties in dispute, including Architects, their Clients or parties to a
construction contract:
•
•
•
•
•
Arbitration
Adjudication
Mediation (including Fixed-Fee)
Third Party Opinion
Expert Register.
For an overview of these options and ADR in general, they produce a document
called It’s Useful to Know. This can be found at www.architecture.com together with
other details of their ADR services.
If the parties cannot reach agreement on a person to act as Mediator, Adjudicator or
Arbitrator, the Contract provides that an appointment shall be made by the RIBA.
What is mediation?
Mediation is a form of ADR which aims to resolve disputes between two or more
parties to good effect. The third party effectively assists the parties to negotiate
a settlement and has a structure, timetable and support that normal negotiation
lacks. Attendance is voluntary, and the process is private and confidential, with the
mediator acting as a neutral third party who facilitates rather than directs the process.
What is adjudication?
Adjudication is a procedure for resolving disputes without resorting to lengthy
and expensive court procedures. For the purposes of this Guide, adjudication is a
reference to the procedure introduced in the UK in 1996 by the Housing Grants,
Construction and Regeneration Act (The Construction Act).
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