Dispute Resolution in Engineering Law and Ethics

What are the four primary methods of dispute resolution?

Litigation, arbitration, mediation, and negotiation.

What is litigation?

The use of the court system to resolve disputes, where an independent party (judge or jury) decides the case based on evidence presented at trial.

What is the role of the judge in litigation?

The judge controls the process of litigation.

Why is litigation often considered a last resort?

Because it is slow, expensive, and often the only alternative for dealing with unreasonable or vexatious parties.

What are pleadings in the context of litigation?

Documents filed in court that define the issues to be litigated in a lawsuit.

What is a writ?

A document that initiates a lawsuit.

What is the nature of negotiation, mediation, and arbitration in dispute resolution?

They are voluntary for both parties involved.

Is litigation voluntary for both parties?

No, litigation is only voluntary for the plaintiff.

What types of law do most engineering disputes typically involve?

Contract law and tort (negligence) law.

What factors determine the appropriate dispute resolution process?

The nature of the dispute and the attitudes and relationships of the parties involved.

What is a common sentiment about litigation expressed by Mary Southin, J.A.?

It is advisable to order your life so you never see the inside of a courtroom, as it is a very expensive place to visit.

Why are engineering disputes considered complicated?

They typically involve many parties.

What is the primary disadvantage of litigation?

It is often slow and expensive.

What is the purpose of pleadings in a lawsuit?

To define the issues that will be litigated.

What is the email of the instructor for the course?

[e-mail].

Who are the teaching assistants for the course?

Mohamed Khalil and Mostaq Ahmed.

What is the significance of the court system in dispute resolution?

It provides a formal mechanism for resolving disputes when other methods fail.

What is the impact of the relationship between parties on dispute resolution?

It influences which dispute resolution process is deemed appropriate.

What are some other methods of dispute resolution mentioned?

Other methods include various informal processes not specified in detail.

What does the lecture outline suggest about the complexity of engineering disputes?

They often involve multiple parties and are therefore complicated.

What is the purpose of the statement of claim in litigation?

It sets out the plaintiff's claim in detail.

What must the statement of claim include?

Each element of the cause of action and the remedy the plaintiff is seeking.

What is the role of the statement of defence?

It sets out the defendant's response to the plaintiff's claim.

What happens if the defendant does not deny the allegations in the statement of claim?

The allegations may be deemed to be admitted.

Why is drafting pleadings considered technical?

A lawyer is usually required to ensure proper drafting.

What is a key financial implication of litigation?

Generally, the losing party is required to compensate the winning party for their costs.

How much of the actual costs of litigation are typically covered by the costs payable?

Only about a third of the actual costs.

What is the purpose of the discovery process in litigation?

To gather information and eliminate surprise at trial.

What are the three main components of the discovery process?

Discovery of documents, examination for discovery, and interrogatories.

What are some drawbacks of litigation?

It is risky, uncertain, expensive, time-consuming, and parties lose control over the process.

What is arbitration?

A private trial process where the parties set the rules.

How can arbitration be less expensive than litigation?

If the parties are cooperative, it generally costs less.

What must parties decide before starting arbitration?

Who will act as arbitrator, the terms of reference, rules of procedure, and applicable law.

What are the three types of arbitration?

Mandatory binding arbitration, voluntary binding arbitration, and non-binding arbitration.

What is mandatory binding arbitration?

When parties agree by contract to arbitrate disputes that arise.

What is non-binding arbitration?

The arbitrator gives an advisory opinion without making a final ruling.

What are some advantages of arbitration?

Privacy and the ability to select an arbitrator with specialized knowledge.

What are some disadvantages of arbitration?

Split proceedings if not all parties agree to arbitrate and the need to pay the arbitrator.

What is negotiation in the context of dispute resolution?

A discussion to resolve the dispute through compromise.

What are the advantages of negotiation?

Parties control the process and outcome, it can be private, often less costly than litigation, and discussions are privileged.

Why is negotiation considered a skill?

It is best learned through practice.

What is mediation?

Mediation is an assisted negotiation where a third party (mediator) facilitates settlement by encouraging compromise.

What is the role of a mediator in the mediation process?

The mediator helps the parties to be objective and keeps the process moving forward.

What is required from the parties involved in mediation?

The parties must be committed to settlement.

What happens to communications if no settlement is reached in mediation?

The communications are privileged.

What are the initial steps in the mediation process?

Opening statements and discussion.

What occurs if an agreement is reached in mediation?

Agreement terms are drafted and submitted to the mediator.

What is a mini-trial in dispute resolution?

A mini-trial involves parties summarizing their case, after which the judge gives a non-binding opinion.

What is a settlement conference?

An informal meeting in which the judge facilitates settlement.

What is binding mediation?

Binding mediation is a combination of mediation and arbitration.

What is the significance of a mandatory arbitration clause in a contract?

It requires parties to resolve disputes through arbitration rather than litigation.

In the case study involving Jade and the construction company, what is the construction company's obligation regarding the arbitration clause?

The construction company is bound to the arbitration clause.

What happens if the parties cannot agree on an arbitrator?

If they cannot agree, the arbitration process ends and litigation may begin.

What is the goal of mediation?

The goal of mediation is to reach a settlement by encouraging communication, openness, and objectivity.

What must be done if an agreement is reached in mediation?

A Settlement Agreement must be drafted and signed by both parties.

Can a mediator disclose private discussions with one party to the other?

No, the mediator may not disclose private discussions or information to the other party.

What can a mediator do if mediation fails and the dispute moves to arbitration?

The mediator cannot share confidential information received during mediation.

What is the first step in the mediation discussion process?

Each party starts by exchanging opening statements.

What is the purpose of breakout sessions in mediation?

Breakout sessions allow the mediator to meet with each party separately.

What happens if the construction company refuses arbitration despite the clause?

Jade can force the construction company to arbitrate.

What is a summary jury trial?

A summary jury trial is a method where a jury hears a shortened version of the case and gives an advisory verdict.

What is the relationship between mediation and negotiation?

Mediation is a form of assisted negotiation.

What is the importance of objectivity in mediation?

Objectivity helps facilitate a fair and effective negotiation process.

What is a construction lien also known as?

A builder's lien.

What is the primary purpose of construction liens?

To guarantee payment for services performed or products delivered.

Why is lien legislation necessary in the construction industry?

Because other types of security do not work effectively when goods or services are provided on credit.

What must happen for a lien to be registered?

It must be registered against the title to the land in the land registry.

What does lien registration ensure?

The lien is attached to the property even if a sale takes place.

What happens if a lien is registered against a property?

The owner cannot sell the property unless the liens are paid.

What is lien perfection?

Proving the legitimacy of the lien in court.

What may happen if a lien holder is not paid?

The lien holder may be able to force the sale of the land to have the lien paid.

What are lien remedies considered in relation to regular contract law remedies?

They are in addition to regular contract law remedies.

To what type of land may lien legislation not apply?

Federal land, or it may be overridden by federal legislation.

What is the significance of construction work being done on credit?

It means that work is performed before payment is received.

What is a potential consequence of a property having an unpaid lien?

No one wants to take on a property with the debt associated with it.

What is one example of security that does not work in the construction industry?

Seizing goods, like a car, if full payment is not made.

What is the role of the land registry office in lien registration?

It is where the lien is mandated and registered against the property.

What is the importance of the construction lien in relation to irreversible construction activity?

It provides a form of guarantee for payment due to the irreversible nature of most construction work.

Who is responsible for the construction lien legislation in Canada?

All provinces have their own construction lien legislation.

What are the key components covered in the lecture outline?

Construction Liens, Bonds, Trusts, Lien Registration, Perfection, Claimant, Priority, Substitutes, Deadlines, Trust Provisions.

What is the email address of the instructor for this course?

[e-mail].

Who are the teaching assistants for this course?

Mohamed Khalil and Mohtaq Ahmed.

What is the significance of lien registration for property sales?

It prevents the sale of the property until liens are satisfied.

What can a supplier of labor or materials do if they have not been paid?

They can file a claim of lien.

What must happen for a claim of lien to become an actual lien against the land?

The claim must be proved (perfected) in court.

What are the requirements to 'perfect' a lien?

The claimant must prove that labor or materials were provided according to the contract, that not all payment was made, and that the requirements of the lien legislation were met.

What happens once a lien is proved in court?

The lien holder becomes a judgment creditor and can recover on that judgment.

Who can typically be a lien claimant?

Workers, contractors, subcontractors, material suppliers, architects, and engineers.

Does a lien claimant need to be in contractual privity with the owner of the land?

No, the lien claimant need not be in contractual privity with the owner.

What must material suppliers show to claim a lien?

They must show that they supplied material for the improvement.

Why is it important for material suppliers to keep separate records for each jobsite?

To prove that the material supplied was used for the specific improvement and not for another project.

What is the priority of a registered lien?

A registered lien takes priority over subsequent interests in the land.

What happens if a property with a registered lien is sold?

The lien holder must be paid out first from the sale proceeds, or the purchaser takes the property subject to the lien.

What determines lien priority?

Lien priority depends on the timing of registration and, in some jurisdictions, when the work related to the lien commenced.

How does lien priority affect construction financing?

A construction mortgage will rank below the lien in priority, which may halt construction and encourage owners to address the lien.

What can an owner provide to have a lien removed from title?

The owner can provide substitute security such as cash, a letter of credit, or a lien bond.

What is a lien bond?

A lien bond is issued by the owner as a guarantee of payment to avoid a lien being registered against the property.

What is the purpose of substitute security in relation to a lien?

The substitute security stands in place of the land as security for the lien claim and is held in trust until the lien is proved or the claim dismissed.

What is the deadline to register a lien after providing the last supply or completing substantial work?

The deadline ranges from 30-60 days, depending on the jurisdiction.

What is the specific deadline under the BC Builders Lien Act?

45 days after the date on which the certificate of completion was issued.