ADR Expertise
& Services

Gordon Barry has a broad expertise in dispute avoidance and dispute resolution, and he is available for nomination as a third-party neutral to assist Parties in the resolution of difficulties. The extent of the ADR expertise and services provided are detailed below.

Introduction

Alternative Dispute Resolution (ADR) is any alternative to resolving disputes through litigation. Many commentators exclude arbitration from the definition of ADR, largely due to its similarity to litigation. However, for the purposes of this description arbitration is considered to be part of the ADR suite of options.

ADR procedures can be categorised in several different ways, one useful option is to consider whether the processes are judgemental, facilitative or investigative.

Judgemental procedures require the third-party neutral to make a decision based on the arguments presented by one of the Parties. Arbitration and Statutory Adjudication fall into this category.

Facilitative procedures require the third-party neutral to assist the Parties in negotiating a solution to the dispute, but without favouring either Parties’ arguments. Mediation falls into this category.

Investigative procedures require the third-party neutral to make a decision on the dispute, but he/she is not restricted to only considering the arguments presented by the Parties, and is expected to further investigate issues pertinent to the dispute. Expert Determination and some bespoke contractual procedures fall into this category.

There are also some variants to the above which can mix the procedures, such as some forms of Conciliation or Dispute Boards.

Gordon is experienced in the provision of all of the above types of ADR procedures.

Alternative Dispute Resolution (ADR) is any alternative to resolving disputes through litigation. Many commentators exclude arbitration from the definition of ADR, largely due to its similarity to litigation. However, for the purposes of this description arbitration is considered to be part of the ADR suite of options.... Read More

Sectors Served

Gordon Barry is available to assist Parties engaged in commercial disputes generally. However, his
strong technical expertise can be used to best advantage in those sectors, where a technical skillset
is a valuable addition.

Gordon is a Chartered Engineer, a Chartered Environmentalist and a Chartered Scientist. He is

thus ideally positioned to assist Parties operating in the following sectors:

Gordon Barry is available to assist Parties engaged in commercial disputes generally. However, his
strong technical expertise can be used to best advantage in those sectors, where a technical skillset
is a valuable addition.

Gordon is a Chartered Engineer, a Chartered Environmentalist and a Chartered Scientist... Read More

  • Water Services
  • Construction & Infrastructure
  • Transportation
  • Chemical & Process Industries
  • Energy & Renewables
  • Engineering & Manufacturing
  • Civil Engineering & Building
  • Agri-Business and Food & Drink
  • Natural Resources
  • Utilities
  • Oil, Gas & Petrochemicals
  • Marine & Maritime
  • Pharmaceuticals & Life Sciences
  • Information & Communications Technology

In addition to serving those sectors which benefit from a technical background, Gordon is also well positioned to assist Parties, who need to resolve issues related to:

  • Water Resources
  • Environment
  • Flooding
  • Climate Change
  • Pollution Control
  • Sustainability

Arbitration

Arbitration is a formal judgemental process, which is supported by both national and international law, and resembles litigation in many ways. The main difference between arbitration and litigation is the ability of the Parties to modify the process to suit the particulars of the dispute.

Arbitration is especially appropriate as an alternative to litigation in international trade due to two key features:

  • The international enforceability of Arbitration Awards, which arises through the New York ConventionConvention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958);
  • The ability of international trading entities to agree a consistent legal framework for determining commercial disputes, independently of the country being operated in.

The basis for any commercial arbitration is an agreement between the Parties, which can also permit the Parties to control the process and avail of other benefits of arbitration, such as:

  • The ability to select the arbitrator or tribunal to manage the process and determine the dispute; or
  • The ability to adjust the process to ensure the most efficient and effective mechanism possible.

However, these benefits usually require the Parties to co-operate while the dispute is ongoing and consequently are not often realised. The selection of a sole arbitrator is frequently determined by an appointing body, rather than the Parties, for example.

A further feature of Arbitration is the absence, in many jurisdictions, of any significant appellate procedure, particularly for international commercial arbitrations. An arbitration award is thus typically final, unless the procedure, including the appointment of the tribunal, has been misconducted or the procedures of natural justice have not been followed. Most national courts will not permit an appeal on the merits of the award, particularly in those jurisdictions where international arbitrations are commonplace.

Gordon Barry is an experienced arbitrator and a Fellow of the Chartered Institute of Arbitrators. He is familiar with the rules of the main international Arbitral Institutions, including the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the Stockholm Chamber of Commerce (SCC) and the Hong Kong International Arbitration Centre (HKIAC), amongst others. He is available to be appointed as a sole Arbitrator or to a tribunal, either as a Party-Appointed Member or as President or Chair.

Arbitration is a formal judgemental process, which is supported by both national and international law, and resembles litigation in many ways. The main difference between arbitration and litigation is the ability of the Parties to modify the process to suit the particulars of the dispute.

... Read More

Adjudication

Adjudication is characterised by being a rapid judgemental process focused on achieving a binding, but not final, result quickly. Adjudications are further distinguished by whether the process is statutory or contractual. The short timescale involved in the process means that it is a highly resource intensive process and may not deal with every issue with the same level of scrutiny as might be expected in an arbitration. An adjudicator’s decision is binding, but not final, and can be referred, for a final resolution, to either arbitration or the relevant court, depending upon the detail of the contract.

Statutory Adjudications are supported by national legislation and are a feature of the construction industry in a number of countries, including the UK, Australia and Ireland. The primary purpose of statutory adjudication legislation is to maintain cash flow within the industry and protect businesses from insolvency due to non-payment of sums owed. Statutory adjudication is thus not designed as a dispute resolution process, but in practice it is very effective in resolving disputes as Parties do not tend to pursue the dispute any further, once an adjudicator’s decision has been issued.

Contractual Adjudication, on the other hand, is very much a bespoke process particular to the individual contract and may include investigative features and other variations from the statutory process. The expected common feature arising from the use of the word adjudication is that it will be quick, typically in the region of 4 to 8 weeks.

Gordon Barry is an experienced adjudicator and familiar with the legislation underpinning statutory adjudication in the UK and the Republic of Ireland.

Adjudication is characterised by being a rapid judgemental process focused on achieving a binding, but not final, result quickly. Adjudications are further distinguished by whether the process is statutory or contractual. The short timescale involved in the process means that it is a highly resource intensive process ... Read More

Dispute Boards

Dispute Boards have their roots in the construction industry in the USA, but are now used internationally and in industry sectors other than construction. The multilateral development banks, as an example, require dispute boards on funded projects, through the harmonised FIDIC contract developed for such contracts.

Dispute Boards were developed as a way of resolving disputes, which did not require the cost and commitment associated with an arbitration, but did require a greater element of compulsion, when compared to mediation. The detail of how dispute boards operate vary with different contracts, but three well-articulated options, as defined within the ICC rules are as follows:

Dispute Review Board (DRB):
DRBs issue a recommendation in response to a referred dispute, which becomes final and binding, if not rejected by one of the Parties within a defined time period.

Dispute Adjudication Board (DAB):
DABs issue a decision in response to a referred dispute, which is immediately binding, and becomes final, if not rejected by one of the Parties within a defined time period.

Combined Dispute Board (CDB):
CDBs normally issue a recommendation in response to a referred dispute, which is similar to a DRB. However, if requested by one of the Parties and either not objected to by the other Party, or agreed to by the CDB, it can issue a decision, which is similar to a DAB.

Another distinction is between Ad-Hoc Dispute Boards, which are only formed once a dispute has arisen, and Standing Dispute Boards, which are formed at the start of the contract. Standing Dispute Boards have the advantage that they have a greater knowledge of the project and can be continually available to the Parties to provide advice on issues before they develop into formal disputes. The 2017 FIDIC suite of contracts highlights this role by changing the name to the Dispute Adjudication/Avoidance Board (DAAB) and includes additional detail on the informal advisory role.

Gordon Barry is a FIDIC Accredited Dispute Adjudicator and is experienced in the operation of Dispute Boards. He has experience in operating as both a single person Dispute Board and as a member of a three-person Dispute Board. He also has the different skills required to operate either in an informal advisory capacity, or alternatively in an adjudicative capacity, as necessary.

Dispute Boards have their roots in the construction industry in the USA, but are now used internationally and in industry sectors other than construction. The multilateral development banks, as an example, require dispute boards on funded projects, through the harmonised FIDIC contract developed for such contracts.

Dispute Boards were developed as a way of resolving disputes, which did not require the cost and commitment associated with an arbitration, but did require a greater element of compulsion, when compared to mediation. ... Read More

Mediation

Mediation is fundamentally an assisted negotiation and has a long tradition around the globe and throughout recorded history. The manner in how mediations are conducted has varied according to the traditions and practices of different cultures. Consequently, expectations as to exactly what a mediation process constitutes can vary with time and place.

Gordon Barry has been trained in a needs-based facilitative mediation process and this is the style of mediation which he practises. The process is needs-based, in that it concentrates on what a Party needs from a successful resolution, as opposed to what a Party might initially view as its rights in respect of the dispute. The process is also facilitative, in that it facilitates the Parties exploring their needs, with a view to achieving a resolution, as opposed to providing any direction to the Parties as to how the dispute should be resolved.

Facilitative Mediation is recognised internationally as a very powerful dispute resolution methodology, which can provide durable solutions and help repair damaged relationships. The structure of a facilitative mediation process is well recognised and involves an initial exploration of the issues underlying the dispute and identification of the Parties needs. This stage is then followed by an exploration of options for settlement, which ultimately leads to a resolution of the dispute.

Gordon Barry is an experienced mediator and accredited with the Chartered Institute of Arbitrators.

Mediation is fundamentally an assisted negotiation and has a long tradition around the globe and throughout recorded history. The manner in how mediations are conducted has varied according to the traditions and practices of different cultures. ... Read More

Conciliation

Conciliation is in many respects very similar to Mediation and in some locations or sectors, the terms can be used interchangeably. The United Nations Commission on International Trade Law (UNCITRAL) published Conciliation Rules in 1980, which are still current, and describe a process very similar to facilitative mediation. The significant difference is that the Conciliator is free to make suggestions to the Parties, at any time, as to how the dispute might be settled, which is a step that does not form part of a facilitative mediation process.

UNCITRAL now use the term mediation rather than conciliation for this dispute resolution process and while the conciliation rules still date from 1980, the current versions of the associated convention and model law date from 2018, and are respectively titled:

  • United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018) (the “Singapore Convention on Mediation”);
  • UNCITRAL Model Law on International Commercial Mediation and International
    Settlement Agreements Resulting from Mediation, 2018

Conciliation can have different meanings in other jurisdictions. Ireland, for example, is one location where the construction industry uses the term conciliation to refer to a two-stage process, whereby the Conciliator initially attempts to resolve the process in the manner described in the UNCITRAL rules. If a settlement is not achieved, then the Conciliator is required to write a recommendation, which becomes final and binding, if not rejected by one of the Parties within a defined time period.

Gordon Barry is an experienced construction conciliator within Ireland and has the skillsets to manage an UNCITRAL conciliation process.

Conciliation is in many respects very similar to Mediation and in some locations or sectors, the terms can be used interchangeably. The United Nations Commission on International Trade Law (UNCITRAL) published Conciliation Rules in 1980, which are still current, and describe a process very similar to facilitative mediation. ... Read More

Expert Determination

Expert Determination is characterised as an investigative process by an appointed neutral, who is required to consider both the issues raised by the Parties and also any other issues, which he/she considers to be pertinent.

Expert Determination can also arise as sub-task to resolve a preliminary issue, as part of an arbitration. In this instance the Expert provides the report to the arbitral tribunal, who will take account of the determination within their deliberations.

The selection of an Expert to make a determination requires the identification of an individual with two distinct skill sets, detailed knowledge of the issue in dispute and ability to mange a dispute resolution process, including the drafting of a reasoned decision. If the Parties are operating in a very specialised area, they are well advised to consider the identification of a suitable expert at the time of the contract signing. Suitable experts in particularly specialised areas can be difficult to identify and agree. This is particularly so if the Parties are already in dispute and there may not be many options for a nominating body to identify.

Gordon Barry has a broad technical expertise and the necessary skillset to manage a process and draft a determination. He has experience in the role of Expert and is available to be appointed if required.

Expert Determination is characterised as an investigative process by an appointed neutral, who is required to consider both the issues raised by the Parties and also any other issues, which he/she considers to be pertinent.

... Read More

Bespoke Procedures

Bespoke Dispute Avoidance and Resolution Procedures are a feature of many contracts. They particularly arise in sectors where one party has a preferred approach to dispute avoidance or resolution and sufficient market power to ensure its inclusion within the contract. Alternatively such procedures can also arise in sectors where there is no standard model contract form and no standard dispute resolution procedures.

Bespoke procedures can frequently involve a combination of processes, such as adjudication with an investigative element, or alternatively dispute boards with a facilitative approach.

Gordon Barry has a broad range of dispute avoidance and resolution skills, which he can utilise in any appointment. He is thus ideally equipped to consider the particular requirements of a bespoke process and develop an efficient plan to implement the necessary procedures.

Bespoke Dispute Avoidance and Resolution Procedures are a feature of many contracts. They particularly arise in sectors where one party has a preferred approach to dispute avoidance or resolution and sufficient market power to ensure its inclusion within the contract. ... Read More