Expert determination is a confidential, cost-effective form of alternative dispute resolution (ADR) widely used in the construction industry. It is particularly suited to resolving technical or valuation-based disputes quicker than litigation or arbitration.
For professionals acting as expert determiners, or advising parties in the process, drafting determinations is a critical skill.
Why validity matters in expert determination
Throughout the process, a determination should:
- Align with the terms of the contract and the expert’s scope of appointment.
- Follow the agreed procedure and any applicable legal requirements.
- Demonstrate fairness and transparency in considering both parties’ submissions.
- Failure to meet these standards can lead to disputes about the determination itself.
Core elements of a determination
When drafting, a determination should include these essential components:
1. What is the legal status of a determination
You should clearly understand the legal authority that allows you to make the determination, and what this means with respect to legal status of the determination and its enforceability.
2. Clear statement of the dispute
Define the issues referred for determination. Ambiguity here can create uncertainty about whether you have addressed the correct matters.
3. Disclosure, Relevance, Privilege and Unwilling Parties
You should have a clear understanding of what documents can be requested, when certain documents cannot be relied upon, and what to do if one of the parties refuses to participate in the process.
4. Consideration of both parties’ submissions
Show that you have reviewed and understood the evidence and arguments presented by each party - the determination should reflect balanced consideration. There should be no grounds for any challenge of bias.
5. Drafting the Determination
You should have a clear understanding of the construction of a well set-out determination, including a clear structure, narrative and explanation of the matters in dispute, the evidence you have reviewed other points you consider relevant or as agreed in the procedures.
6. Evidence of reasoning
Explain how you reached your conclusion. This may not need to be as detailed as a court judgment, but it should demonstrate a logical process and application of expertise.
7. Proper use of technical expertise
Apply your specialist knowledge within the boundaries of your appointment.
8. Compliance with contractual and legal requirements
Check the contract and terms of reference carefully.
Common pitfalls to avoid in expert determination
- Straying outside scope: address only the matters referred to you.
- Not following agreed process: follow the procedure set out in the contract or terms of reference.
- Incomplete coverage: ensure all issues raised in submissions are addressed.
- Ambiguous reasoning: avoid vague or conclusory statements and explain your rationale clearly.
- Mistake: what happens if you make a mistake.
Why This Matters in Construction Disputes
Construction disputes often involve complex technical questions, such as valuations, delays, defects, or final accounts. A determination should provide clarity and certainty, helping projects move forward without prolonged disruption.
Professional responsibility in ADR
Acting as an expert determiner carries significant responsibility. Your determination influences contractual rights and financial outcomes. High-quality drafting underpins:
- Credibility as a neutral expert.
- Confidence of the parties in the process.
- Enforceability of the outcome.
Develop your skills with structured training
The six-week Online Expert Determination programme includes live webinars, interactive discussions, and practical exercises, helping you develop the skills to manage the process and draft valid determinations.
The course counts as 18 hours of formal CPD and includes a practical written assessment, ensuring you gain real-world competence.
Book your place today to strengthen your expertise and deliver determinations.