Construction Dispute Resolution in Ireland during Recession: Best Practice for Small-to-Medium Enterprises

The purpose of this paper is to identify best practice construction dispute resolution in small-to-medium enterprises (SMEs) within Ireland during the recent economic recession. A sequential mixed methodology encompassing a detailed literature review, case studies, and questionnaire survey is adopted, with results analyzed using both exploratory (data reduction) and confirmatory (structural equation modelling) factor analysis. The results show that four core aspects should be adopted by SMEs to achieve best practice construction dispute resolution in recession: third-party intervention, adoption of a streamlined process, proactive party characteristics, and the use of legal professionals. Numerous studies of this subject have been conducted; however, no research has been done to date documenting best practice in construction dispute resolution within SMEs, particularly in light of the economic recession in Ireland. It is clear that dispute resolution in Ireland is currently undergoing fundamental changes, and time is necessary to see if the new Construction Contracts Act 2013 will help this practice. Therefore, it is a fundamental requirement for project management and legal professionals to acknowledge the changing environment attributable to the economic downturn and the resultant SME best practices in dispute resolution. This paper fulfills a gap in knowledge with the emergence of the economic recession and the evolution of best practice in dispute resolution within SMEs in the Irish construction sector.

Recent Developments in the Law of Torts in Northern Ireland Annual Conference of the Irish Association of Law Teachers

This paper reviews decisions from the Northern Ireland and England and Wales High Courts and Courts of Appeal as well as the UK Supreme Court relating to tort and principally to the tort of negligence in the past 12 months or so.

In structure, the paper will be presented in four parts. First, three preliminary points relating to contemporary features of the NI civil courts: personal litigants – Devine v McAteer [2012] NICA 30 (7 September 2012); pre-action protocols – Monaghan v Graham [2013] NIQB 53 (3 May 2013); and the rise of alternative dispute resolution. On the last named issue, the recent decision of PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 (23 October 2013) on unreasonable refusal to mediate, will be discussed.

Second, the paper moves to consider the law of negligence generally and case law from the NI High Court reiterating Lord Hoffmann’s view in Tomlinson v Congleton Borough Council [2004] 1 AC 46 that no duty of care arises from obvious risks of injury. In this, reference will be made to the application of the above “Hoffmann principle” in West Sussex County Council v Pierce [2013] EWCA Civ 1230 (16 October 2013), which concerned an accident sustained by a child at school. A similar set of facts was presented recently to the UK Supreme Court in Woodland v Essex County Council [2013] UKSC 66 (23 October 2013). The decision there, on non-delegable duties of care, will have a significant impact for schools in the provision of extracurricular activities.

Third, I will review a NI case of note on the duty of care of solicitors in the context of professional negligence in the context of conflicting advice by counsel.

Fourth, I will examine a series of cases on employer liability and including issues such as the duty of care towards the volunteer worker; tort and safety at work principles generally; and, more specifically, the duty of care of the employer towards an employee who suffers psychiatric illness as a result of stress and/or harassment at work. On the issue of workplace stress, the NI courts have made extensive reference to the Hale LJ principles found in the Court of Appeal decision of Hatton v Sutherland [2002] 1 All ER 1 and applied to those who have suffered trauma in reporting on or policing “the troubles” in Northern Ireland. On the issue of statutory harassment at work, the paper will also mention the UK Supreme Court’s decision in Hayes v Willoughby [2013] UKSC 17 (20 March 2013).

NEC Contracting: Evaluation of the Inclusion of Dispute Review Boards in lieu of Adjudication in the Construction Industry in the United Kinddom

The construction industry is renowned for spending vast sums in the resolution of disputes, but never in the prevention. The purpose of this paper is to analyse the New Engineering Contract (NEC) to determine whether or not adjudication has become misaligned with the contract’s objective of promoting effective management. In doing so, the paper examines dispute review boards in order to ascertain if they could be a viable alternative to adjudication. A sequential mixed methodology is adopted including a detailed literature review, eight semi-structured interviews, culminating in the circulation and analysis of a questionnaire, to record the significance of the factors identified. The research concludes that the majority of individuals agree that dispute review boards would be more aligned with the NEC. The familiarity of members, the potential to curb rogue behaviour of parties and the proactive nature of the board are flagged as positive features, however the cost aspect requires further investigation. The reservations made in the study about adjudication, such as the priority given to speed over accuracy and also the adversarial nature of the process, suggest that a preventative step prior to proceeding to adjudication would coincide more with the three core themes of the NEC Contract and therefore, be a positive addition.

The Oxford Handbook of Conflict Management in Organizations

New ways of managing conflict are increasingly important features of work and employment in organizations. In the book the world's leading scholars in the field examine a range of innovative alternative dispute resolution (ADR) practices, drawing on international research and scholarship and covering both case studies of major exemplars and developments in countries in different parts of the global economy. Developments in the management of individual and collective conflict at work are addressed, as are innovations in both unionized and non-union organizations and in the private and public sectors.

New practices for managing conflict in organizations are set in the context of trends in workplace conflict and perspectives on how conflict should be understood and addressed. Part 1 examines the changing context of conflict management by addressing the main frameworks for understanding conflict management, the trend in conflict at work, developments in employment rights, and the influence of HRM on conflict management. Part 2 covers the main approaches to conflict management in organizations, addressing both conventional and alternative approaches to conflict resolution. Conventional grievance handling and third-party processes in conflict resolution are examined as well as the main ADR practices, including conflict management in non-union firms, the role of the organizational ombudsman, mediation, interest-based bargaining, line and supervisory management, and the concept of conflict management systems. Part 3 presents case studies of exemplars and innovators in the field, covering mediation in the US postal service, interest-based bargaining at Kaiser-Permanente, 'med-arb' in the New Zealand Police, and judicial mediation in UK employment tribunals. Part 4 covers international developments in conflict management in Germany, Japan, The United States, Australia, New Zealand, the United Kingdom and China.

This Handbook gives a comprehensive overview of this growing field, which has seen an huge increase in programmes of study in university business and law schools and in executive education programmes.

Firms and Innovative Conflict Management Systems in Ireland

This article examines the practices adopted by firms in the Republic of Ireland to manage conflict involving groups of employees, focusing in particular on the uptake of 'alternative dispute resolution practices'. The article reveals that conflict management practices take the form of 'systems', and it estimates the incidence of innovative conflict management systems, incorporating alternative dispute resolution (ADR) practices, as involving about 30 per cent of firms. A series of influences are shown to be associated with innovative, ADR-based conflict management systems, especially commitment-oriented HRM practices and whether unions are recognized. © Blackwell Publishing Ltd/London School of Economics 2010.

BAILII, Legal Education and Open Access to Law

The British and Irish Legal Information Institute (BAILII) entered the online legal information landscape in 2001 with charitable status as a provider of UK and European judgments, and has over the past decade or so moved from a system quickly put together with any materials which could be found, to a system which provides a core resource to professionals in law. In this article we provide an overview for the law teacher of the system’s first years and we then look at whether usage in law schools has matched that of the professional, how the JISC funded Open Law project enabled development for law students, and where we might go in the future as part of the Legal Information Institute collective which operates under the ‘Free Access to Law’ banner.
As members of the Open Law team who sought funding, carried out the research and implemented the project, it seems to us that the project was generally successful. Our indications were that prior to Open Law the use of BAILII by students was low – it was not readily found or discussed by lecturers, was difficult to use, and generally less user friendly than it could have been. The changes implemented by Open Law appear to have changed that position considerably. However, our findings also indicate that there is much work to do to re-energise digital legal information as a legal education research field.