“If the facts are against you, argue
the law. If the law is against you, argue the facts.
If the law and the facts are against you, pound the table and yell like hell.”
Mosaic, our associates and consultants have extensive experience in the preparation, analysis and defending of contract claims. However, our preference is to resolve problems before they become major by proactive management of projects [Refer Mosaic's Consulting Services].
When looking to engage a technical expert, you need to look for:
Art: Delivering Expert
Evidence is Becoming Harder. This article
discusses a number of recent judgements that seem to have
re-framed expert evidence, 'the court is not compelled to
choose only between the rival approaches and analyses of the
experts. Ultimately it must be for the court to decide as a
matter of fact what [occurred]. '...there is an
overriding objective of ensuring that the conclusions
derived from that analysis are sound from a common-sense
Our key areas of expertise of dispute management are:
Our areas of expertise are primarily:
Mosaic's resources available for use and/or download include:
Patrick Weaver was a Graded Arbitrator and an Accredited Mediator with the Institute of Arbitrators and Mediators, Australia (IAMA) for more than 30 years (since merging with LEADR in 2014, the Resolution Institute); he resigned his grading in 2017. He is very experienced in the preparation, negotiation and defence of commercial claims in construction, engineering, general business, and ICT disputes, and has been called to provide Expert evidence in a number of court cases.
Patrick was first Graded as an Arbitrator by IAMA in 1987. His interests and involvement in Mediation and Conciliation started in the mid 1980s when he participated in some of the Early Mediation courses run by IAMA. Generally, he prefers to encourage parties to a dispute to use the processes of Mediation and/or Conciliation to resolve commercial issues in preference to the more expensive and disruptive/time consuming processes involved in Arbitration or litigation.
Patrick has worked extensively with clients in the preparation and analysis of claims. More recently, this has involved providing contract services to Doyles Construction Lawyers, focusing on schedule and cost analysis work in response to claims under the securities of payment legislation in both NSW and Victoria. See Patrick's Full CV
In negotiation the parties to a dispute must reach an agreement themselves, through a process they create. Whist in most circumstances, business people are quite happy and capable of conducting negotiations, from time to time the involvement of a skilled negotiator can assist a party to achieve its desired outcomes more effectively.
Negotiations are often structured and follow a predictable
pattern. There are also many recognised styles and techniques
of negotiating. Assistance with, or training in, negotiation
can provide a valuable boost in the final agreement. Patrick
is a skilled and experienced negotiator who can be engaged to
help an organisation prepare for a negotiation and where
appropriate assist in the conduct of the negotiations.
Expert determination is a flexible alternative procedure for the resolution of disputes based upon the decision of an independent third party expert and is often the quickest and most effective way of resolving disputes which are relatively simple in content or are essentially technical in nature.
To establish the basis for an expert determination, there either needs to be a clause in the contract that is generally phrased to give the expert the power to decide the best way to resolve the dispute. Typically, the provision will state that once the expert is provided with sufficient material, he or she will meet with and hear from the parties, deliberate and then hand down a written determination. In the absence of a contractual agreement, once a dispute has crystallised, the parties can agree to use expert determination in preference to other options. In either event, the participants agree beforehand to be bound by the decisions of the independent expert. The agreement will normally provide that the parties remunerate the expert on a 50/50 basis and that monies will be placed into a trust account in advance.
Generally, expert determination is enforceable. If a party were to try to overturn the determination in a court of law, the Court would be likely to find that the parties had entered into a contract in which they agreed that they would be bound by the expert’s determination, went in with eyes wide open and accordingly are bound to abide by the experts ruling.
An expert determination clause is designed to fast track dispute resolution so there is an expectation that the expert will deliver a determination promptly. Another virtue is that the procedure can be invoked whilst the contract is still on foot, so the contract can progress and contractual relationships can remain intact. The clause can also provide that the determination can be binding, pending conclusion of the project whereupon it can be litigated or retried. Alternatively the clause can stipulate that the determination is binding, period. Expert determination is contained and confidential.