Expert determination is a form of alternative dispute resolution used to resolve disputes without going through litigation or arbitration. Whilst it's used across sectors, it has become particularly relevant in the construction industry, where disputes often hinge on detailed technical issue.
What is expert determination?
At its core, expert determination is a confidential process in which the parties agree to appoint an independent expert to decide on a specific dispute. That expert is not acting as a judge or arbitrator but is engaged for their technical knowledge and experience. The process is typically quicker and can be more cost-effective for the parties involved.
How does It work in a construction context?
In construction, expert determination may be used for disputes involving:
- Valuation of works
- Delays or extensions of time
- Defects or performance issues
- Final account disputes
These are areas where an independent professional with relevant technical expertise can bring clarity to both parties. Because construction disputes frequently involve complex details and tight timelines, expert determination offers a practical way to avoid prolonged processes.
The process begins with the parties agreeing to refer a dispute to expert determination, either through a specific clause in their contract or through a separate agreement once a dispute arises. They may select the expert themselves or ask an appointing body, such as RICS, to nominate one. Once appointed, the expert will receive written submissions from each party, consider any supporting documentation, and issue a written determination.
Construction projects are fast-moving and multi-layered, with many stakeholders and dependencies. When disputes arise, time is often critical, and maintaining progress on site is key.
Expert determination supports this by offering:
- Speed: It avoids the delay of court or arbitration proceedings
- Cost-efficiency: It may be more cost-effective than formal legal routes
- Technical clarity: Experts can apply their professional knowledge directly to the dispute
- Relationship preservation: It can be less adversarial, which can help sustain working relationships on long-term projects
Professional development and risk awareness
Although expert determination is simpler than litigation or arbitration, it places serious responsibilities on the appointed expert. That’s why professional training is essential to understand the process and carry it out with confidence and clarity.
Learning how to manage appointments, communicate with parties, and produce determinations is crucial for professionals taking on this role. It also ensures alignment with best practices and the expectations of appointing bodies or clients.
Become an expert determiner
The RICS Online Expert Determination Training is designed to give construction professionals the skills to carry out expert determination appointments effectively and includes practical training from experienced practitioners.