Comparative to arbitration or litigation, expert determination is less formal and can operate at greater flexibility.
Expert determination is a dispute resolution procedure that is inquisitorial in nature and aims to settle the dispute through evaluation of a technical or specialist issue by an independent expert. Expert determination may be a contractual procedure, established by a construction contract and firmly grounded in the expert determination clauses. Usually expert determination, as a form of ADR or alternative dispute resolution, is sought in two instances – where a valuation or cost determination is needed or where specialist expert knowledge is essential to understand and resolve the dispute. That being said, expert determination may be applied in situations where the dispute is not yet crystallised or where there is no dispute at all – for example where a matter needs to be better understood by parties prior to engagement into a contractual relationship.
There are a lot of specialised bodies assisting with the appointment of an expert determiner. These centres have access to expert determiners with specialist technical, engineering or construction skills.
The determination is binding, unless parties agree otherwise. The parties to a construction contract, however, can select an expert determiner jointly. The expert determination procedure is neutral, can be tailored to specific need of parties and, if required, can be confidential and flexible – as the ramification for the procedure is more informal compared to arbitration or adjudication.