In my experience, the Dispute Avoidance clauses in NEC3 (i.e. Senior Representatives) have been ineffective, in part due to poor Senior Rep selection, which has caused disputes to drag out over a number of years, with negative impacts to relationships between the Parties. I’ve also experienced an ‘expectation’ that the Senior Representative provisions are used first. Is it felt the NEC4 form and guidance notes reduces the risk of similar circumstances arising? and is it felt the risk of the provisions being found by the Courts to be a ‘fetter’ on the right to refer to Adjudication at any time has now been mitigated?
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There is no ‘senior representative’ provisions in NEC3. So in NEC4 …
You are correct that there is an expectation of using these provisions first as they will be cheaper than going to adjudication, will tend to lead to a less black/white decision and can address the causes of the dispute (which may often be personnel, lack of administrating the contract correctly etc.) rather than the purely legal.
In the UK, you cannot restrict the rich to refer a dispute to adjudication and the first para of the W2 provisions reflect this - read W2.1. However, in a few court cases, the judge has decided in favour of one party, but awarded all costs against them due to their complete belligerence in not trying to settle the dispute. Likewise, an adjudicator could do the same if one Party refuses to engage with this aspect of the contract.
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