Business

Transforming Waste Into Wonder / Dispute Resolution Without Tears

phil-and-cabinetBy Kathy Borsuk

Although the Turks & Caicos still have no formal recycling program in place, one local entrepreneur has taken matters into his own hands: turning empty conch shells into stunning pieces of home decor.

Phil Thompson, president of Thompson’s Conch, uses a patented process in which crushed conch shells are embedded in a laminate matrix to create exquisite countertops, vanities, tabletops, lamps, planters and even furniture backings and arms. The material is ground and polished to a durable gloss finish and an intriguing beauty all its own. As no two pieces of conch shell are alike in shape or color, the product’s gleaming surface is a kaleidoscopic array of whorls, shards and chips in countless shades of pink and white.

A native of Harbour Island in the Bahamas, Phil says he’s been developing the idea for over seven years after watching fishermen knock conch at a local regatta. “I saw the tremendous number of conch shells that were being wasted and I knew there had to be something useful to do with them.” He experimented with a variety of techniques and was eventually awarded a patent and trademark rights to the process.

As a pilot for Bahamasair, Phil regularly flew to the Turks & Caicos Islands, where he met and married Belonger Rochelle Brown. Together, they built the factory on South Dock Road in Chalk Sound, Providenciales, purchased the first load of conch shells from Bugaloo’s bustling conch salad restaurant in Blue Hills, and opened for business in early 2004. Phil soon diversified into woodworking to supply the cabinets and furniture on which the conch shell countertops and inlays are placed.

Thompson’s Conch products are sold at W.I.I.F. (West Indies International Furniture), with samples displayed at their showroom in The Saltmills in Grace Bay. During a recent visit there, I saw first-hand a customer’s ecstatic reaction to the material (“It’s so cool!”) and witnessed her plans to use it as a desktop in her home office.

W.I.I.F. owner Franck Aubert works with Phil on marketing and sales and is very excited about future possibilities, especially custom designed items. Franck says, “I like to focus on non-standard, high quality, one-of-a-kind pieces. Right now, we’re doing some wonderful benches, chairs and coffee tables that use conch inlays with teak wood and fabrics.”

In fact, Phil says most of his products are, by nature, custom-made. “For kitchen and bathroom countertops, we have to take measurements and mold a template. The base material can be tinted in a variety of colors to match any decor, although we find that natural tones complementing the conch shells are most popular. If necessary, we’ll come into your home and install the countertops too. The whole process takes three weeks to a month’s time.”

Customers are an equal mix of locals and vacation homeowners, with custom pieces regularly shipped out of the country. (Learning to pack a cumbersome countertop for overseas delivery was one of his early challenges, Phil recalls. His first special-order piece was broken in transit!)

Future plans for Thompson’s Conch include expanding the market and coming up with a catchy product name. (Any ideas out there? “Conchite” comes to my mind.) Through W.I.I.F., the conch shell furniture will be exhibited at a popular design trade convention in North Carolina later this year. And in five or ten years, Phil says, “I want to see my creations in a five star hotel in Timbuktu or Katmandu . . . and when someone asks where they came from, I’ll be proud to say they were made with Turks & Caicos Islands conch shells.”

In fact, Phil is already thinking about procuring enough shells to meet demand. “Between the fishermen and conch farm, I believe the supply is there. It makes me feel good to know that I’ve taken a wasted product and am helping others appreciate its natural beauty.”

For more information on Thompson’s Conch, contact Phil Thompson at tel/fax 649 946 8172 or cell 649 242 6770. Samples of conch shell furniture are found at West Indies International Furniture (W.I.I.F.) at The Saltmills, Providenciales, tel 649 941 4662; email Franckyb@wiif.com; web  www.wiif.com.

Dispute Resolution Without Tears

By Keith Pickavance, Pickavance Consulting

The construction industry is a fertile breeding ground for disputes. They cannot be avoided entirely and it would be foolish to suggest that they could. Amongst other things, there may be design faults or defective work or materials; the cost of variations may cause dismay; money can be wrongfully withheld and claims may be made for loss and expense for delay and prolongation or extensions of time to defend against liquidated damages for late completion.

On the other hand, the high cost of energy-sapping defended litigation can often be avoided by sensibly planning your dispute resolution procedures before contract as well as by the proactive management of the process of resolution once a dispute has arisen.

Mediation, conciliation, expert determination, adjudication, arbitration, and, of course litigation, are all possibilities to be considered. Two of these: mediation and conciliation, are often referred to as “ADR,” an acronym that means “alternative dispute resolution.” That in itself does not mean much without recognising to what it is an alternative. The essential difference between orthodox dispute resolution and ADR is that in ADR, the parties make their own settlement agreement, which is only binding so long as they want it to be. In orthodox dispute resolution, the decision is made for them by a third party and it is final and binding upon them. There is a grey area in all this and that is in expert determination and adjudication in which the decision can be final and binding, or it can be final and binding unless disputed in another forum, or it can be non-binding depending upon how (and under what law) it is structured.

Apart from reference to the courts by litigation (which in every common law country is a unilateral act, open to anyone who thinks they have had a right infringed), all the other methods of dispute resolution require an agreement. Naturally, it is easier to agree to a method of resolving a dispute before it has arisen rather than after. However, irrespective of whether there is an agreement in place, it is always open to either party to suggest an alternative means of dispute resolution that will save both parties time, cost and frustration, and to enter into an agreement for that at any time.

Non-binding
In non-binding processes, the dispute resolver helps the parties to agree their differences. These are entirely private processes, conducted without prejudice to the rights of either party, and there is nothing stopping either party from shifting its ground during the process. (Indeed, if it is to be successful, it is essential that they do.)
If they do not succeed in reaching a settlement there is nothing to prevent either party from dealing with the same dispute through another forum at a later date and nothing that has been discussed in the ADR process may be used in evidence elsewhere.

The dispute resolver will agree with both parties a procedure; he will read the parties’ respective position statements and any documents provided in support. He will consult with the parties privately, and with both together. Although essentially a non-binding process, it is always open to both parties to agree that the final settlement should be binding. The parties agree to share the costs of the dispute resolver and to pay their own. This is an excellent method of dealing with disputes, because it encourages the parties to talk to each other. If successful, it helps to preserve working relationships and even if unsuccessful, it helps the parties to focus on the real matters in which they are in dispute. In many contracts, ADR is required at some stage and in England, court-ordered ADR forms a part of the Civil Procedure Rules of the courts.

Mediation
Without express permission, the mediator will never disclose what has been said to him by either party to the other. A mediator does not have to have a detailed understanding of the facts or the law of the matters in dispute but it often helps. He will not advise the parties of their rights, nor generally will he advise the parties of the strength of their case. He will help each to see the weaknesses of their own and the strengths of their opponent’s position. In doing so, he will draw them closer together with a view to executing an agreement to settle their differences.
In general, mediation can be completed in two to three days. In very large cases with many issues it might take a week or more but that is unusual.

Conciliation
Conciliation as a similar process to mediation but the conciliator takes a more active role in the settlement of the dispute than does the mediator. A conciliator necessarily has to have a detailed understanding of the facts and law of the matters in dispute. The conciliator will express an opinion on the relative merits of the parties’ respective cases. He will try to persuade them of his views and, in doing so, will attempt to guide the parties into an agreement compatible with the parties’ rights under the contract.

Conciliation can be expected to be a little shorter than mediation simply because the conciliator is able to focus the parties’ attention on the issues and drive the process in a way that is unavailable to a mediator. In general, conciliation can be completed in one or two days. As with mediation, in very large cases with many issues it might take a week or more but again, that is unusual.

Non-binding or final and binding
Unlike ADR in which the parties make their own decision, the essence of these decision-making processes is that a third-party is introduced to make the decision for them. Because the process is consensual, it is always a private process. However, depending upon the rules of engagement agreed between the parties, the information that becomes available may not be privileged and the decision made may not be binding on the parties, leaving them free to revisit the dispute in another forum. The parties are free to agree who should pay the dispute resolver’s costs and how the parties’ costs should be dealt with, although it is usual for each side to pay their own costs.

Expert determination
Expert determination is quite different from any other method of dispute resolution. In this forum, the expert is appointed for his knowledge and understanding of the particular issues in dispute in the field in which he is an acknowledged expert. The expert will agree with both parties a procedure; he will read the parties’ respective position statements and any documents provided in support. There is usually no provision for the parties to change their position or amend their case during the process. He will consult with the parties privately, and may consult with both together, but he is under no obligation to do so unless it is made a term of his appointment.

The expert is given the role of investigator. He is required to find the facts and law in relation to the issues in dispute, to make his own inquiries, tests and calculations and to form his own opinion and decide upon the merits of the parties’ positions. Depending upon the issues, expert determination can involve much research and a hearing and can take anywhere from a week to several months.

Adjudication
In England and Wales and in several Commonwealth countries, adjudication has recently been given statutory authority. Under the law of those countries that adopt this process, it is generally the rule that either party to a specified type of construction contract has the right at any time to submit any dispute or difference to the adjudication of a third party. However, even where the statutory right is limited to particular types of contract, there is nothing stopping the parties from agreeing by contract to follow the same process in regard to contracts which are outside the Act and that is common.

Adjudicators are often appointed for their knowledge and experience of the type of matters in dispute — although it is not essential. Although the idea of adjudication is that there should be a decision, in the event that the parties do not like the result there is nothing to prevent them from running the case again in another forum; the rule of res judicata does not apply to adjudication. The adjudicator will agree with both parties a procedure; he will read the parties’ respective referrals and any documents provided in support. He may also require a hearing and will often conduct conference calls with the parties.

The adjudicator’s decision is binding until either party decides to refer the same dispute to arbitration or litigation, in which case the decision is binding until an Award or Judgment is handed down. When the legislation was first enacted in England some six years ago, the adjudicator was empowered to make his own inquiries of the facts and law. It was thought that he might act pretty much like an architect or engineer under a construction contract and that few parties would take the adjudicator’s decision as final and binding, so it was not initially thought necessary for the adjudicator to act within the rules of natural justice.

Six years on and several hundred enforcement cases later, it is now clear that parties who have been unhappy with the outcome have sought to overturn the decision on the basis of the adjudicator’s misconduct rather than have the case re-run in arbitration or litigation. As a result, the courts have imposed upon adjudicators the obligation to act within the rules of natural justice. They must hear both sides. The parties must have an equal opportunity to make their own case and to respond to the case against them, although they may not alter or amend their submissions.

This is a tall order in the limited time available to make the decision. The adjudicator must be impartial but does not have to be independent. He may only inquire into the facts and the law of the cases that are put to his decision. He may not go outside the parameters of the parties’ submissions to make good any deficiencies.

Unless the referring party agrees to extend the period for the decision by up to 14 days, or both parties agree to extend the period, the dispute resolution process must be conducted and the decision given within 28 days of referral. The adjudicator has no power to order discovery or to take evidence on oath unless the parties give it to him by agreement and if either party requests it, he must give reasons for his decision . . . and it all seems to work very satisfactorily.

Final and binding
In the sense that in the following tribunals, the facts once found cannot be re-opened by any court, the matters are res judicata. Appeal on a point of law is always available from a domestic arbitral tribunal to the court and from a lower court to a higher court. However, statute has tended to limit the right of appeal from an arbitrator’s award in other than a point of law of public importance in order to give the parties a greater sense of finality.

Arbitration
An arbitration agreement is written into all standard forms of a building and civil engineering contract. It is a private process and nobody is permitted to know of the matters in dispute or the decision unless the parties agree otherwise. The arbitrator’s decision is final and binding and can be enforced in many countries of the world by virtue of the New York Convention.

Arbitrators, like judges, must be independent and impartial. They must scrupulously follow the law of the contract and the rules of natural justice to provide a speedy and efficient decision on all the issues submitted to jurisdiction. The arbitrator may not go outside that limitation to decide things that were not part of the reference.
Subject to the arbitration agreement, the parties may adopt specific procedural rules which dictate the powers of the arbitrator or the procedure to be followed. Otherwise, the powers of the arbitrator are set out by statutory instrument under the Arbitration Ordinance 1974. In domestic disputes it is normal for the reference to be to a single arbitrator, but in international disputes it is more common for each party to appoint their own arbitrator and for the arbitrators to appoint a chairman or umpire, forming a three-man tribunal.

Arbitration can be very time consuming and expensive or it can be quick and cheap depending upon the parties and the case management skills of the arbitrator. There is usually nothing to stop a party from amending its case subject to paying the costs of the other side thrown away.

Generally, the arbitrator has the powers of a high court judge in regard to the taking of evidence on oath, subpoenas for evidence, discovery and so on. He can order a party to pay the costs of interlocutory matters and can determine who should pay his fees and whether the losing party should pay the winning party’s costs, in whole or in part, with or without interest and on what basis. The arbitrator must give reasons for his decision if either party requests it.

Litigation
Litigation is the dispute resolution process run by the civil courts of the state. It is free to every individual who has a grievance to resolve. Judges tend not to be technical people although in some courts they are specifically selected for their technical ability (e.g. the English Technology and Construction Court). On the other hand, judges often have the power to appoint technical assessors or experts to assist them and will almost always do so if the parties request it.

Notwithstanding that the court and the judge are provided by the state, litigation is often a very expensive process. This is often simply because of the complicated rules of procedure, which a reluctant but wily litigant can often exploit to put off the hearing of the case for years, including amending its case from time to time. There are also restrictions on who can appear in the courts on behalf of a litigant. In large cases the costs can run to many thousands of dollars per day during a hearing, which may take many months or even years before the dispute reaches that stage.

Litigation is a public process (justice must be seen to be done) and the public is encouraged to sit in on the proceedings to hear of the matters in dispute. Judges must give reasons for their decisions and important decisions are published and recorded in law reports.

Keith Pickavance LLB., Dip. Arch., Dip. I.C. Arb., R.I.B.A., F.A.E., F.C.I.O.B is an architect with a legal background, who specialises in the resolution of construction disputes as arbitrator, adjudicator, mediator and conciliator. He has also been appointed as expert in over 400 disputes internationally and has served as a court-appointed expert.

For further information see www.pickavance.net, email keith@pickavance.co.uk or phone +44 (0) 20 7089 7020. For local enquires, contact Rolf Rothermel or Wendy Been at Rothermel Been Smith, tel 649 946 4551, email rothermel@tciway.tc.



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On the Cover

Agile LeVin—photographer, explorer and chronicler of everything TCI on his website www.visittci.com—took this drone photo of the multi-textured wetlands of West Caicos. He was part of the expedition that investigated the site of the historic pirate attack in the area. For more information and photos, go to page 48.

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