Out-of-court Settlement of Disputes

Consultancy

It often happens that someone wants to get some informal information from an expert, asking if something is normal or if the present complaint really is a defect. The experts from faktum.FußbodenInstitute offer you a professional and competent advising service about all of your questions and problems concerning floor construction, and even about the little questions whose quick and simple answers provide a sound basis for the decision on how to proceed in future.

For many years both private and commercial clients, architects, and planners as well as public building authorities have made use of our advising service on technical or legal issues.

Mediation/Arbitration

For out-of-court settlement of disputes the experts from faktum.FußbodenInstitute offer the necessary expertise in the capacity of mediator or arbitrator.

“The terms mediation and arbitration are largely used as synonyms. Both forms of action depend on the parties´ willingness to co-operate. They both are voluntary and non-binding. In case of a failure each party may go to a national court or have recourse to arbitration. The parties have to play a part in the action and to influence its course. They have an active share in conflict resolution. Experts describe the difference between mediation and arbitration as follows:

In arbitration the parties to a dispute call in an impartial third party who does not have any terminal power of decision, but who is supposed to make a proposal for a settlement.

In mediation the mediator also has no power to decide. The parties are self dependent and the action can only be successfully settled by a voluntary and mutual consent of the parties.

Arbitration is confidential. Unlike proceedings in national courts they take place in camera. If the arbitration is successful, it can save a lot of time and costs.

Arbitration as well as mediation are influenced by the points of view of both parties. The legal assessment of the facts is not in the foreground. However, the arbitrator or the mediator always should bear the legal situation in mind. For the building expert the problem arises that he might come into conflict with the law of legal counselling.

This is particularly true if legal questions and not technical issues are in the foreground of the conflict, which often cannot be foreseen in advance. There are two solutions: Either both parties are represented by a lawyer or the expert in the function of arbitrator or mediator co-operates with a lawyer in a team.“ (Source: Extract from an abbreviated version of a lecture by J. Weithaas on the occasion of the 30th anniversary of the Aachen Building Expert Conference in 2004). )

Private Expert Opinion

Furnishing an expert opinion may assess issues at an early stage. The experts are in close dialogue with legal advisers, so they can contribute to a recommendation in a lawsuit.

In general, one of the parties places the order. With his work the expert helps to make a decision whether it would be advisable to take legal action or not. In the run-up to a legal action the expert helps to settle responsibilities in advance. By this means, useless legal actions against the wrong defendants can be avoided or out-of-court settlements can be prepared.

However, the client´s advantage is limited: If it does come to legal action, the private expert opinion is not admissible evidence in accordance with the German Code of Civil Procedure (ZPO). In general, the court places an order with another expert. Even in the case of winning the lawsuit, the costs of the private expert opinion will only be reimbursed under very strict conditions.“ (Source: Extract from the abbreviated version of a lecture by J. Weithaas on the occasion of the 30th anniversary of the Aachen Building Expert Conference in 2004) )

Arbitrator’s Award

Arbitrator´s awards are another service in the portfolio of faktum-FußbodenInstitute which helps to come to an agreement between the parties to a dispute without any court proceedings.

“The parties agree that an arbitrator´s award shall clarify the questions in the respective dispute with binding effect. Every issue which can be assessed by an expert, can be the object of an arbitrator´s award. The agreement can be either made as a precaution for a future dispute or in case of a pending dispute. The objective of an arbitrator´s award is to avoid a legal dispute in which even the judge would be reliant on the professional opinion of an expert.

The arbitrator´s award is not an arbitration in the narrower sense, but one method of an out-of-court settlement. It is not the expert´s task to work towards an amicable settlement between the parties. He only may do this, if both of the parties show their willingness to reach agreement.

The agreement between the parties to get an arbitrator´s award and the arbitrator´s award contract between the parties and the expert are the legal bases. The regulations of sections 317 to 319 BGB (German Civil Code) shall apply. The arbitrator´s award shall be binding for both parties, unless it obviously is either inequitable or incorrect.

This means that judicial review is strongly limited. Therefore an arbitrator´s award requires a high level of preciseness and responsibility. The agreement on the arbitrator´s award is subject to section 307 BGB because of its far-reaching consequences. Thus, the regulations of the General Terms and Conditions shall be invalid, if they put the contracting party of the user at a disadvantage.“ (Source: Extract from the abbreviated version of a lecture by J. Weithaas on the occasion of the 30th anniversary of the Aachen Building Expert Conference in 2004)

Arbitration Proceedings

In arbitration proceedings an arbitration tribunal, assigned by the parties in advance, is the only authority to make a final and enforceable decision. In the majority of cases the proceeding is faster and saves the parties expenses and at the same time helps to relieve the judiciary.

Arbitral jurisdiction implies the final settlement of disputes and conflicts excluding ordinary courts. This established case law always has the same importance as the state jurisdiction. Compared to legal proceedings the advantage of arbitration proceedings is the fact that the freely selected arbitrators have the required expertise and that both parties trust them.

The proceeding takes place in camera and is much more flexible than a normal proceeding. As the parties do not have to go through numerous instances, arbitration proceedings are less expensive and can be settled faster. Attention should be paid to the fact that once an agreement on the arbitrator´s award has been made, it is binding and can only be reversed by mutual consent.

According to the arbitration code, the court of arbitration generally consists of three persons unless the parties agree otherwise. Each party designates an arbitrator. Then both arbitrators choose a chairman of the arbitration tribunal. However, the parties may agree that a single arbitrator shall make a decision.

As faktum.FußbodenInstitute provides a nationwide network of experts, arbitration proceedings can be conducted with all of the respective participants.