EcoRate Ltd – Architect, trading as Dispute Settlement Associates provides to the construction sector and the wider commercial world alternative dispute resolution services (ADR). Keith can be engaged as a professional commercial mediator and can also be appointed as an Adjudicator under the provisions of the Construction Contracts Act 2002 and its Amendments (CCAct). His particular interest in ADR procedures began in England while studying for his UK architectural registration, and continued with some law studies at Victoria University. He has a Dip.Bus.Stud. (Dispute Resolution) from Massey University.
Keith is a Mediation Fellow of the Arbitrators’ and Mediators’ Institute of New Zealand Inc (AMINZ) and also a member of the Resolution Institute. He is included on the Mediator Panels of both organisations. Keith is also included on the AMINZ Panel of Adjudicators able to be appointed under the CCAct.
FACILITATION and DISPUTE MANAGEMENT: When the road gets a bit ‘rocky’ Parties can head-off the escalation of many disputes by acknowledging the potential problems early on. Ideally this is before the difficulties gel with the Parties believing that they are at what seems to be the point-of-no-return. By bringing in an independent facilitator the differences can be addressed, misunderstandings clarified, and (if necessary) the options for further outside assistance can be discussed and agreed.
Keith has found that often, especially at the early stage of disputes, the essence of what a Party wants is to be heard, and to believe that the Other Party/ies have properly listened to its concerns. From this dialogue a more robust resolution, or alternative ways forward, can be developed. Also, when there is a hierarchy of management, by bringing in more senior staff to the discussion many disputes can be nipped-in-the-bud, or handled more objectively.
MEDIATION: Keith has been involved in providing mediation services since the late 1980s and has been a Warranted Non-Crown Independent Tenancy Mediator, as well as a founding Mediator for the Weathertight Homes Resolution Service.
Mediation is a most useful general tool that is easily tailored to any particular situation. Because it is not ‘Judicial’ it allows a wide exploration and clarification of the matters of concern to the Parties, and therefore for a broad range of possible outcomes to be explored. Often interpersonal difficulties can be significant (but unspoken) in the origin of disputes and Mediation allows for a safe acknowledgement of these and thereby allows for subsequent unexpected resolutions. Any agreed settlement that is properly expressed as a written contract can often be presented to a judicial forum for enforcement.
Often it is not recognised that Mediation is also useful as a preparatory process for anticipated judicial actions. This is expanded on the Mediation Page.
EARLY NEUTRAL EVALUATION (ENE): In the early stages of a dispute ENE is a useful clarifying tool for the Parties, as well as in the period between mediation and determinative resolution processes. Joint Early Neutral Evaluation is valuable where the parties are prepared to participate in good faith.
In construction ENE is a flexible non-binding (but by agreement can be made so) process where an independent and impartial expert evaluates the technical/non-legal merits of a dispute early on. The process can take a variety of forms as agreed between the Parties. It often is used where appropriate (as in the NZIA General Conditions of Contract) in the space between Mediation and a formal Expert Determination.
EXPERT DETERMINATIONS & FORENSIC ARCHITECTURE REPORTS: Expert Determinations are suitable for disputes where the law is well understood but the Partes have different opinions regarding the quality of work or services to be provided under a Contract. They are especially appropriate for small scale construction work where financial restrictions can negate a Just Outcome.
With an extensive background in architecture, Keith has been engaged over the years to investigate and report on matters associated with building disputes, and to prepare expert evidence for legal negotiations and actions.
CONSTRUCTION CONTRACT ADJUDICATION: Adjudications under the Construction Contracts Act 2002, and Amendments, (CCAct), is a time restrained and efficient statutory process for obtaining an enforceable resolution for disputes within the building industry, without the disadvantages and delays of formal arbitration. CCAct adjudications are most appropriate where the general law is not in question, but the technical aspects of the work done (or not done), or the specific Contract Documentation (Specifications, Drawings, etc.) are complex.
Its processes are quite different to the traditional judicial paths. Keith has been undertaking CCAct adjudications since its inception and is included on the Arbitrators’ and Mediators’ Institute of NZ (AMINZ) List of Adjudicators able to be appointed under the CCAct.