Blog Author: Tom Hawkins – Director, FTI Consulting
Tom Hawkins is a Chartered Construction Manager and Quantity Surveyor who has over 14 years’ experience in the construction and engineering industry. He initially obtained his experience working for a national UK main contractor prior to moving into consultancy roles where he currently provides Quantum Expert Witness & Dispute Resolution services worldwide for FTI Consulting. He has experience regularly providing commercial management strategies & advice which includes services as part of dispute avoidance and resolution proceedings.
Introduction
When parties become entrenched in a dispute on any construction or engineering project, the potential for long lasting negative impacts arises. Unfortunately, there is no ‘magic’ one-size fits all solution to avoiding disputes, each matter must be considered on its own merits.
This article acknowledges that true ‘avoidance’ of disputes is unlikely. Instead, it seeks to offer potential solutions to conflicts or issues and thus avoid the need for formal dispute resolution processes. It focuses on common causes of disputes during a project lifecycle and outlines some avoidance techniques and processes which parties may find useful.
UK construction & engineering industry
The UK construction industry has historically been considered adversarial. Just read some of the influential reports commissioned on the industry throughout the years; from Banwell in 1964 to Latham in 1994 and beyond[1].
A recent report by the RIBA[2] indicates that one in four construction projects during 2021 still experienced one or more disputes during its lifecycle. The industry still appears to retain its adversarial nature in the current era.
Why do we want to avoid disputes?
As the project timeline moves through the various phases, from pre-construction to occupation/use; the time, cost, and effort expended by parties in trying to deliver a construction project will significantly increase. When parties become entrenched in a dispute the pillars of delivery (See Diagram 1) for a construction project can often be forgotten or disregarded.
Diagram 1 – Construction project pillars
If a party’s people, time and/or cost resource is diverted in making or resolving claims & disputes this will take the same away from the actual delivery of the construction project. A negative impact to a single, or multiple, construction project pillar(s) could have serious ramifications for the delivery of the project as a whole.
As well as potentially impacting the current project, a dispute could also have future implications upon a business’s reputation when it comes to seeking future work opportunities. Where possible a positive focus should always be maintained in meeting the current project deliverables.
Dispute causes – the contract and people
There are many standard form contracts for differing procurement routes used widely throughout the UK; including the various editions within the JCT’s own suite[3]. The numerous contracts between the various supply chain members are fundamental to the delivery of a construction project because they contain the obligations agreed to be performed.
From the author’s experience and research common causes of disputes in the UK construction industry can arise from:-
- parties failing to comply with agreed contractual obligations;
- failures in administering the contract; and/or
- errors / omissions in the contract documents.
An initial reading of these causes might suggest that the contract is a common cause of disputes in the UK construction industry. Upon deeper analysis, the influence of people in causing disputes is also particularly clear. People are required to draft and complete the contract documents, understand the obligations to be delivered and to administer the contracts to a successful conclusion.
It is respectfully suggested the contract document on its own cannot be the sole cause of disputes. Another important factor is poor culture and behaviour in the supply chain. Leadership is the key to changing this picture. All supply chain participants should provide effective management of inter-relationships between contracts and people throughout the project lifecycle. This is the only real way to avoid conflicts and their negative consequences.
Avoidance techniques
Table 1 below identifies some common conflicts and issues that can arise on UK construction projects along with avoidance techniques, considering contract and people factors, which parties could adopt to improve project outcomes:-
Table 1 – Avoidance techniques
| Conflict or Issue | Avoidance technique |
| Procurement & tendering practices | The ability to identify and sustainably manage risk throughout the project timeline is vital. Many procurement routes do not encourage engagement with the supply chain during the initial phases of the project, if at all. All parties may wish to consider key supply chain member involvement and integration earlier in the procurement process to benefit from their knowledge and experience at the earliest suitable stage. |
| Lack of collaborative intent to find solutions | It is worrying that a recent industry survey indicated 42% of clients did not want to use collaboration in projects[4]. A contract which includes collaboration clauses, i.e. JCT Constructing Excellence Contract 2016, that places the emphasis on teamwork and partnership to solve problems[5] could improve supply chain engagement and successful project outcomes. However, contract clauses cannot be the only source of collaborative intentions. Effective leadership by supply chain members to create the right cultures and behaviours is necessary to implement any contractual collaborative intent. |
| Inappropriate allocation of project risks | The standard form contracts are initially drafted to reasonably allocate the project risks between the parties. Typically, the standard form contract clause drafting is amended so it benefits one party over another. Amongst other things, these amendments can lead to overly complex contractual obligations and unfair risk allocations. A change in people’s cultures to not simply pass risks down the supply chain through contractual agreement but to the party best placed to manage the risk may lead to improved collaboration in identifying solutions and decrease project time/cost impacts. |
| Failure to administer the contract | The administration of the contract requires knowledge of the contractual obligations and suitable personal skills to successfully manage conflicting party interests. Those drafting contracts should therefore ensure obligations are not unnecessarily complex. Those appointing contract administrators should also consider whether the personal skills of the desired individual are able to maintain open channels of communication and instil behaviours such as collaboration, cooperation and a no-blame culture. |
| Failure to keep relevant records | Conflicts can arise when records are unavailable to demonstrate what is actually required / demonstrate what has occurred. The suitable collation and maintaining of relevant contemporaneous records which are stored in a logical format with ease of access when required would assist here. Records are usually relied upon at future events so undertaking their collation as part of an ongoing process could avoid problems later in the project timeline. |
The above techniques should be proactively implemented to prevent conflicts rather than attempting to resolve them at a later date (see Diagram 2).
Diagram 2 – The conflict cycle
Image Source:- FTI Consulting LLP[6]
To enshrine the avoidance techniques in a company’s culture it may require institutional change and conscious policy decisions to prevent problematic historic ways of working from returning. One current industry initiative is the Conflict Avoidance Pledge, initiated by the Conflict Avoidance Coalition Steering Group, which requires signatories to implement collaboration and early intervention techniques[7].
Dispute avoidance processes
It is inevitable, however, that some conflicts will arise, and these can often benefit from a formal process or a third party opinion to assist with unlocking the true differences between parties and desired solutions. Examples of some common dispute avoidance processes in this regard include:-
Party to party negotiation
This should always be the first consideration for seeking to avoid conflicts becoming disputes. It is likely the people, time and cost resources required for this process will be significantly less than any other process.
Parties that engage in negotiations to seek a solution for conflicts should determine what the ‘true’ difference between them is. In doing so, the parties may consider the following:-
Table 2 – Party conflict avoidance considerations
| Engaging in early discussions | Identifying the agreed contract obligations | Listening to opposing views |
| Try to remove emotion and project ‘history’ where possible | A reasonable willingness to compromise | Fully record and document any agreed final resolutions |
For negotiations to be successful a suitable method to avoid the conflict escalating should be collaboratively determined considering the project deliverables.
Expert Determination
Expert Determination is an avoidance process in which an independent expert who has in-depth knowledge of a subject matter to assist with resolving a conflict. An appointment is made (through contract drafting or separate agreement at any time by the parties) and by prior agreement of the parties the decision reached is binding.
Parties seeking to engage in the expert determination process should remember the selection of the right expert is key to obtaining a suitable decision. Selection criteria should include consideration of the expertise required, neutrality of the individual, ensuring they are conflict free and their personal skills in being able to manage the process.
Avoidance Panels (‘APs’)
Through contractual incorporation APs are standing panels incorporating one or multiple members. They are typically appointed from project commencement to provide early reviews on potential areas of conflict through ongoing observations and recommendations to the parties. The panel members will typically have an obligation to visit the project on a cyclical basis to maintain awareness of the project.
A key purpose of APs is to encourage collaborative behaviours between the parties and maintain their relationships, rather than becoming an issue resolver. Two well-known examples of APs are the Network Rail ‘Dispute Avoidance Panel’ and Transport for London ‘Conflict Avoidance Panel’.
Dispute Adjudication Boards (‘DABs’)
DABs usually consist of an independent panel of three experienced construction professionals who are typically appointed at the commencement of the project. The panel agrees to be available throughout a project for when conflicts arise. Through contractual agreement they seek to provide a mechanism of dispute avoidance through making temporarily binding decisions on the parties.
A number of contractual models for setting up a DAB are available. The JCT offers the JCT/The Chartered Institute of Arbitrators (‘CIArb’) Dispute Adjudication Board Rules, a JCT Model Dispute Adjudication Board Tripartite Agreement, with enabling provisions for each of the Design and Build and Major Project standard forms of contract.
Historically DABs are not very common in the UK due to the popularity of statutory adjudication. DABs are typically suited for larger and longer term projects due to the time and cost implications of forming a DAB which needs to be proportionally considered against the nature and size of the project.
Mediation
The most common forms of mediation likely to be considered for a conflict in the construction industry are facilitative and evaluative. In a facilitative mediation, a mediator attempts to facilitate a negotiation between the parties in conflict. In comparison, evaluative mediation is where mediators are more likely to make recommendations and suggestions by expressing opinions to the parties.
The many benefits of mediation include people, time and cost resource savings and the opportunity to preserve business relationships, when compared to dispute resolution processes. A good mediator will consider the party conflict avoidance considerations outlined in Table 2 above.
Summary
A summary of the key points outlined in this article for avoiding disputes on UK construction projects is:-
- Remember the delivery of construction project pillars – Relationships, Quality, Time & Cost;
- A correctly drafted contract with a suitable risk allocation can be an effective tool for all parties;
- People must lead the change to drive positive cultures and behaviours;
- Consider avoidance techniques which can be adopted throughout the project timeline; and
- Remember the dispute avoidance processes.
If you have any questions or wish to discuss any of the above further, please contact the author at tom.hawkins@fticonsulting.com
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Disclaimer:- The content of this article is a summary of the presentation given by Tom Hawkins, FTI Consulting, to the JCT Young Professionals Group during February 2022 and has been updated for the purposes on this article. The above should not be construed as legal advice and a professional opinion should always be sought for any conflicts or issues which arise.
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[1] An example being the ‘Modernising Construction, Report by The Comptroller and Auditor General. 2001’
[2] Royal Institute of British Architects (‘RIBA’) Contracts and Law Report 2022
[4] RIBA Contracts and Law Report 2022
[5] Constructing the Team, Latham. 1994
[6] https://www.fticonsulting.com/~/media/Files/emea–files/insights/brochures/2021/jan/fti-consulting-construction-solutions-brochure.pdf?la=en
[7] https://www.rics.org/uk/products/dispute-resolution-service/conflict-avoidance-pledge/