Across as wide range of infrastructure projects we are seeing an increasing number of compensation claims reaching the point of dispute and, with projects utilising compulsory acquisition powers set to rise, we are expecting to see this trend continue.

When compensation claims become protracted the commercial and emotional pressures on both parties rises, creating further entrenchment and an intensifying cycle of frustrations, lost time and escalating costs.  The circle continues until time becomes critical and then there is rush to prepare for some form of litigated outcome. Ahead of any formal litigation parties are expected to have utilised some form of Alternative Dispute Resolution (ADR) process.

There are several forms of ADR that can be used to resolve compulsory purchase disputes, each one extremely powerful when approached by the parties in the correct way when considering the matters in dispute.

Wilson Fearnall can provide RICS approved ADR through Expert Determination and Evaluative Mediation services, but we also encourage independent expert case reviews much earlier in negotiations as we firmly believe that prevention is much better than cure.  This review service can be provided to one party or to both, is completely flexible, is confidential, without prejudice and is extremely cost effective.  The input and output of a case review can be agreed on appointment of the expert, but the earlier independent input is provided, the greater the opportunity for resolution and subsequent time and cost savings.

The right ADR mechanism at the right time can be extremely effective and parties should be discouraged from using the process as a ‘box ticking exercise’ merely to gain leverage.

In preparation for engaging an expert to support in any capacity its worth thinking through the following:

• Consider all the issues and agree elements in dispute – have negotiations really been exhausted?
• Has all the evidence been put forward?
• Is the dispute just a valuation matter?
• Step back – is any position reasonable assuming the underlying principle of ‘equivalence’?

We strongly recommend early independent input and that ADR options are fully considered– multiple approaches can be used throughout negotiations.  The small price of early expert input has the potential to de-escalate tensions and deliver significant time and cost savings through earlier claim settlement.