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Download PDF FileAlternative Dispute Resolution (ADR) offers a constructive lens for resolving conflicts outside traditional courtroom settings. By fostering mediation, arbitration, and negotiation, ADR provides a more flexible and efficient avenue for parties to reach mutually acceptable solutions, promoting a quicker and often less adversarial resolution process.
Conflicts inevitably surface in the intricate web of human interactions—a contractual disagreement, a workplace dispute, or a familial discord. However, the conventional legal system can often appear as an intimidating and protracted route to resolution. The labyrinthine court procedures and the adversarial nature of litigation may exacerbate tensions and prolong the path to reconciliation. Recognizing the need for a more streamlined and cooperative approach, Alternative Dispute Resolution (ADR) emerges as a beacon of change. ADR comprises diverse methods designed to usher parties away from the conventional courtroom drama, offering them a more flexible and efficient means of settling differences.
Enter Alternative Dispute Resolution (ADR), a set of methods that offer a refreshing departure from the courtroom drama and provide parties involved in disputes with more flexible and efficient ways of settling differences. In contrast to the rigidity of traditional litigation, ADR introduces adaptability into the conflict resolution process. Whether through mediation, arbitration, or negotiation, ADR allows parties to tailor the resolution procedure to their unique needs and circumstances. This flexibility expedites the resolution process and fosters a collaborative atmosphere, encouraging open communication and compromise. As we navigate the complex terrain of conflicts, ADR stands as a promising alternative, steering us toward a more harmonious and timely resolution of disputes.
Abstract
This thesis delves into the challenges and conflicts of the construction industry arising from its dynamic and ever-evolving nature. The complexity of construction contracts often leads to disputes among the various stakeholders involved. Construction professionals conducted semi-structured interviews and administered questionnaires focusing on alternative dispute resolution (ADR) to address this issue. The primary objective was to assess the correlation between cost and time within the ADR sector, comparing its impact to traditional methods. Additionally, the study aimed to identify the types and frequency of conflicts and factors influencing the transition into disputes.
The research encompasses an in-depth literature review, summarizing key definitions of disputes and conflicts. It also provides a brief historical overview of alternative dispute resolution (ADR) and its evolution into a standard form of contract and primary method of dispute resolution. The literature review further explores the applications and circumstances surrounding ADR processes. Subsequently, the findings from the literature review, semi-structured interviews, and questionnaires were triangulated to draw conclusions and formulate recommendations.
The key findings highlight that conflicts and disputes are intrinsic to the construction industry due to its intricate nature and the many interdependent parties involved. These conflicts can arise at any stage of the construction process, extending even before the commencement of design work. Moreover, the study reveals that ADR, compared to litigation, is more effective and efficient in terms of time and cost. However, it emphasizes the continued relevance of legal proceedings to prevent disputes from spiralling out of control regarding costs.
The research also identifies the most common causes of disputes. The literature review and primary data analysis consistently highlight recurring causes over the years, suggesting a potential correlation that warrants further investigation. The solutions proposed, such as early intervention in conflict, demonstrate significant potential to impact cost savings, time efficiency, relationship preservation, and the overall trajectory of dispute development.
Acknowledgements
In the acknowledgements, heartfelt gratitude is extended to the individuals whose unwavering support and contributions played a pivotal role in completing this thesis. Their guidance, encouragement, and valuable insights have been instrumental in shaping this scholarly endeavour.
Declaration
I affirm that the content presented in this dissertation results from my original and independent work, and I unequivocally assert that no portion has been borrowed or replicated from any external source. Appropriate citations and referencing have been diligently applied when I have incorporated other authors' ideas, theories, or concepts.
This dissertation stands at ____________ words approximately.
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Abbreviations
ADR – Alternative Dispute Resolution
NBS – National Building Survey
EOT – Extension of time
TCC – Technology and Construction court
LADs – Liquidated and ascertained damages
RICS – Royal Institute of Chartered Surveyors
L&E – Loss and Expense
FAV – Final Account Variation
VOV – Valuation of Variations
FTU – Failing to understand
CPR – Civil Procedure Rules
HGCRA - Housing Grants, Construction and Regeneration Act
ANOVA – Analysis of Variance
GCDR – Global Construction Dispute Report
NCCLS - National Construction Contracts and Law Survey
Introduction
Alternative Dispute Resolution (ADR) offers a more effective approach to resolving construction disputes than traditional litigation methods. ADR methods, such as mediation and arbitration, provide avenues for dispute resolution, while some disputes may still necessitate formal litigation procedures.
In the construction industry, where diverse individuals from various corporations collaborate, disputes are almost inevitable due to the industry's dynamic nature. ADR techniques have gained traction as a preferred means of managing conflicts and disputes, largely because traditional methods incorporated into standard contract forms have proven unsatisfactory (Lee, WingYiu, & Cheung, 2016).
Distinguishing between conflicts and disputes, Fenn, Lowe & Speck (1997) note that conflicts arise when the interests of two parties are incompatible and can often be managed to prevent disagreements. On the other hand, disputes, as highlighted by Cakmak & Cakmak (2014), become a significant hindrance to project completion and necessitate resolution through mediation, arbitration, negotiation, etc.
The primary catalysts for construction disputes revolve around financial and temporal factors, such as non-payment and delays due to adverse weather conditions. These issues can lead to project setbacks, prompting potential claims for extensions of time (EOT) and loss and expense claims, depending on the responsible party, whether the employer or contractor.
Hypothesis
ADR has enhanced the efficiency of dispute resolution in terms of cost and time due to its alternative approaches.
Negative Hypothesis
Despite using alternative methods, ADR has not proven to be more effective in terms of cost and time for settling disputes.
Research Primary Aims
- Investigate ADR to gain insights into the motivations driving its utilization.
- Explore and identify the primary techniques employed in ADR.
Research Objectives
- Provide a concise overview of the historical evolution of ADR to comprehend its origins and evolutionary changes.
- Examine the primary causes of disputes within the construction industry and establish the key factors contributing to these conflicts.
- Conduct a comparative analysis between ADR and alternative dispute resolution methods.
- Evaluate the impact of ADR on the construction industry, discerning whether its incorporation has resulted in positive or negative effects in resolving disputes.
Research Methodology
The literature review plays a pivotal role in validating the viability of the proposed hypothesis. The initial step involves exploring alternative dispute resolution (ADR) extensively to familiarize the author with the subject and refine the thesis's aims and objectives. Torraco (2016) recognizes that literature reviews serve diverse purposes and adopt varied forms for different audiences.
After conducting thorough research and establishing foundational knowledge, the literature review will be crafted to provide the author with a comprehensive and current understanding of the subject. This review will draw upon a substantial body of secondary data, including journal articles, written works from books, and research from the World Wide Web.
Quantitative or Qualitative Strategy
Two distinct research strategies and methodologies fall under 'Quantitative' and 'Qualitative' (Laycock, Howarth, & Watson, 2016). The selection of a research methodology is contingent upon the study's purpose and the type of data needed (Naoum, 2013). Table 1 delineates the essential characteristics of both types and their respective research approaches.
| Aspect | Quantitative | Qualitative | |||||||
| |||||||||
Features of qualitative and quantitative approaches to research(Laycock, Howarth, & Watson, 2016)
Quantitative Research Data
Quantitative data is measurable and normally in a numerical form that can be rigorously and statistically analysed. This can be drawn by collecting data from questionnaires, case studies, literature, etc (Laycock, Howarth, & Watson, 2016). Furthermore, Naoum(2013) states that quantitative research clarifies a theory by analysing data through objective research.
Qualitative Research Data
Qualitative data is based on opinions, perceptions and feelings. This data is captured through interviews, discussions, observations, etc. This results in non-numerical data, i.e., it uses words, which provides more open interpretation data (Laycock, Howarth, & Watson, 2016). Furthermore, Naoum(2013) describes qualitative research as subjective and ‘Exploratory’ when there is limited knowledge of the topic or ‘Attitudinal’ when assessing an individual’s perspective towards an object.
Primary Data
Primary data can be collected directly from the author to support the research (Naoum, 2013). This method is considered to attain the most reliable research. It gives the researcher more control over the collection of data. Furthermore, carrying out this type of research provides the author with an understanding of how real industry practices relate to the author's real-world experiences (Laycock, Howarth, & Watson, 2016).
Secondary Data
Questionnaires are a form of research instrument that sets out a series of questions to compile data from respondents to gather opinions, feelings, and perceptions on the selected topic. Closed question questionnaires provide a predictable and simple set of answers. Closed questions are desired because a collection of answers produced in advance can be listed on the questionnaire(Brace, 2018). This type of question enables an easy way to collect data and provides an effortless way for the respondent to record their data.
Closed questionnaires will be thoughtfully written to avoid incompletion and ensure the collected data can be analysed. Fellows & Liu(2015) state the questions should be unambiguous and easy for the respondent to answer. They should not require extensive data gathering by the respondent. They will use the most widely used Likert scale and multiple-choice questions to attain accurate views and to what extent they agree/disagree with a statement. In addition, they will closely follow the objectives to ensure the thesis aims are fulfilled.
The questionnaires will aim to learn about ADR, its effectiveness compared to traditional methods, and what methods were used. Before distribution, These will be piloted to warrant their effectiveness and provide constructive feedback(Fellows & Liu, 2015). Questionnaires will be distributed to construction law sector participants with experience in alternate dispute resolution. An expectation of around 10-15 % returned and completed will suffice for suitable data analysis. The participants will be sourced via social media networks such as LinkedIn and contacts obtained during university.
Interviews
Interviews will also be conducted following the questionnaires and developed based on the questionnaire responses. The interviews aim to provide qualitative rather than quantitative data, which cannot be obtained via questionnaires alone. Interviews are verbal interactions between two or more people where information is directed from the interviewee to the interviewer (Laycock, Howarth, & Watson, 2016).
Interviews can take different forms, being fully structured, semi-structured, and unstructured. Semi-structured interviews will take place for this thesis as this type offers greater flexibility and depth in the interviewee's responses. I plan to conduct semi-structured interviews via telephone, preferably Skype interviews if possible, to allow convenience for the interviewee. I plan to carry these out with the following participants:
- Interviewee P1: Quantum Claims Consultant
- Interviewee P2: Chartered Surveyor
The interviews are expected to last around 30 minutes; however, a cap of 15 minutes is needed if needed. It is thought the participants will provide me with specialist opinions within this niche subject area. Initially, it was intended to conduct face-to-face interviews. However, most interviewees preferred telephone interviews, which they considered would be less intrusive on their time, so interviews over the phone were carried out.
All interviewees must fill out a consent form before the commencement of the interview. This will be included in Appendix 1. All interviews will be recorded via a Dictaphone, borrowed from the university, with consent from the interviewees before questioning and recording for transcription and analysis. Data analysis will be thematically analysed, and common trends in the answers will be identified within my analysis.
Data Triangulation
Triangulation is a research application of two or more data collection methods to ensure the viability of data and attenuate the flaws with the associated methods (Naoum, 2013). It draws upon information from different sources and people’s perspectives, i.e., literature reviews, questionnaires, and interviews, to aid in producing robust data and mitigating any flaws with each method. Using various data collection methods (figure below) increases the likelihood of any inconsistency within the data being identified; therefore, the data represents real-world opinions and has aided in robust conclusions.
Triangulation
Triangulation
Methodology model 
Methodology model
Within the early stages of research, there were limitations recognised and considered. First was the limited accessibility of current research to form the secondary data within the literature review. This proved a lengthy and difficult process, with an element of leeway that allowed for more aged sources. The author also discovered that more recent literature was obtainable by widening the global search criteria, so this was utilised. Furthermore, acquiring reasonable data collection for the questionnaires proved a difficult process with a limited amount. This is due to the specialist sector ADR falls into and the accessibility to participants with the desired skills and knowledge required to fulfil the needs of the aims and objectives.
Furthermore, some of the questions had limited options for participants in the survey, for instance, questions 3, 6, and 9. An open-ended provides an opportunity for participants to provide more insights. Therefore, this could have potentially affected the results of the study. In addition, at least three interviews were planned, but the emergence of Coronavirus and its prevalence in the UK restricted the study to only two interviews. Therefore, this could have affected the findings of the study. Including more interviewees in the analysis may have improved the study, which is an implication for future research.
Contingency Plans
Case studies will be utilised if issues arise, such as gaining insufficient data from the questionnaires. If data collected from the interviews are deemed inadequate, further interviews with the author’s LinkedIn connections will be requested.
Research Gantt Chart
Ethical Considerations
The authors have always carried themselves professionally throughout the thesis by maintaining quality and integrity standards. They have ensured confidentiality and anonymity as their main priority and incorporated mechanisms to avoid harming participants whilst conforming with the appropriate ethical standards.
Participants have been informed of the research method and the potential outcomes. Any participant will not be aware of the other participants, and interviews will be conducted over the telephone. All collected data will conform with EU General Data Protection Regulations (GDPR) and be stored safely on university servers. All data will be kept until marking has been completed. Once this is done, the data will be deleted unless otherwise stated.
Due to the nature of data collection, minimal risks were present. Therefore, a risk assessment was not required. Instead, consideration of any activity that may have caused an unreasonable risk was accounted for.
Literature Review
Construction disputes arise due to disagreements among contract parties, and it is posited that conflicting opinions among project participants inevitably lead to disputes if not effectively managed (Alaloul, Tayeh, & Hasaniyah, 2019). The author suggests that the increasing complexity of construction projects and contracts heightens the likelihood of disputes, making them nearly unavoidable.
Eilenberg (2003) categorizes disputes into various levels, starting with disagreements at the lowest level and escalating to arguments. Although Eilenberg does not explicitly address the distinction between conflict and dispute, Fenn, Lowe & Speck (1997) propose that conflict could represent the initial stage of a dispute within a construction contract. Consequently, if conflicts are not promptly addressed, they may escalate into full-fledged disputes.
Supporting this notion, the National Construction Contracts and Law Survey 2018 findings reveal that, over 12 months between 2017 and 2018, 19% of contracts experienced at least one dispute, with 4% encountering four or more disputes. This underscores the continued prevalence of disputes in the construction sector (Malleson, 2018).
Contracts in dispute accessed on 15/11/19(Malleson, 2018)
Global Construction Disputes Report 2019 defines a dispute where two parties are in a situation where both differ in opinions of a contractual right, resulting in a decision being made under the terms of the contract, which transitions into a formal dispute (Arcadis, 2019). Alazemi& Mohiuddin (2019) and Aryal & Dahal (2018) agree the construction process makes conflicts unavoidable, especially due to the nature of the industry, which creates uncertainty. However, Netscher (2015) argues that 99% of construction claims can be settled without going down the dispute resolution process, minimizing the occurrence of disputes.
Causes of Disputes in Construction
This chapter evaluates the causes of disputes in construction specified by other researchers. When a dispute arises, the causes must be identified for a suitable resolution for all parties involved.
Disputes
Inevitably, conflict and disputes are natural and real in every project (Opata, Owuss, Oduro-Apeatu, & Tettey-Wayo, 2015). They may become apparent for several reasons and can be categorised into 3 main groups(Jaffar, Tharim, & Shuib, 2011).
- Organisational: Increased project complexity has led to ambiguity, which expresses uncertainty, and misunderstandings occur, giving rise to conflicting situations(San Cristóba, Carral, Diaz, Fraguela, & Iglesias, 2018).
- Contractual: Increased contractual complexity is inherent within the construction. It can increase the incidence of disputes occurring, such as a claim for an EOT, liquidated ascertained damages(LADs), loss and expense (L&E), payment, etc. (Sinha & Wayal, 2013).
- Technical: Errors/incomplete technical details, overdesign, etc. (Jaffar, Tharim, & Shuib, 2011).
Despite the categorisation of disputes, they can occur at any time during the process, even before any design work is carried out. Disputes can surface for many reasons, from as early as the initial stage of a project when it is first being discussed. The construction industry and its processes are niches compared to many other industries, creating unpredictability and risks that are sure to happen.
Mason (2016) suggests disputes follow the boom and bust cycle. As profit margins decrease, many people compete for smaller amounts of work. Arguably, many disputes have their seeds sown at the project's planning stage to hurry the commencement of construction, putting pressure on the consultants(Ekhator, 2016). Ekhator(2016)also states the agreement between client and contractor contains contractual obligations for both parties; however, these are sometimes not well-defined, presenting differing interpretations, often leading to disputes.
These claims support the literature in Figure 7 from the NCCLS 2018, where client and contract and client and consultant make up many parties in dispute. In support of this literature, a study by Kumaraswamy &Yogeswaran(1998) identifies the common causes of disputes are mainly related to contractual matters, such as variations, EOT, complying with payment provisions, accessibility of information, administration, management and unreasonable expectations of the client. In further research, Harmon(2003)emphasized conflicts may develop due to the limitations of available resources such as labour, materials and equipment, limited time, money, etc.
This can be linked to today's world, with the causes of dispute not differing but growing throughout the revolution and the ever-increasing complexity of the construction industry. The GCDR 2019 findings indicate that parties fail to understand and comply with contractual obligations as the number one cause of dispute(Arcadis, 2019). However, according to Malleson(2018), the most common reason for disputes is EOT, followed by final account valuations and variations. Figure 5 supports Malleson's suggestions, and Figure 6 supports Arcadis's suggestions.
Main issues in dispute accessed on 15/11/19 (Malleson, 2018)
The number one cause of the dispute was accessed on 15/11/19(Arcadis, 2019)
It can be deciphered from the literature that there is a common link to disputes arising, such as an EOT and contractual obligations that can be closely linked. The reason is contractual obligations are complex, and not all parties fully understand the clauses and how to abide by them, thus creating an idyllic opportunity for disputes to arise.
Common Parties in Dispute
Sakal(2004)states the construction industry today is different. From the 1980s and beyond, there was a shift from public financing by the central and local government, which prompted the industry to become more reliant on profit-oriented development. Consequently, relationships and trust between clients, contractors, and subcontractors withered and were replaced with distrust and conflict.
Arguably, this has impacted the relationship between the client, main contractors and subcontractors, thereby increasing the incidence of disputes, which can be supported by Malleson's (2018) findings in Figure 7, which identifies that 74% of disputes are between the client and main contractor and 26% between the main contractor and subcontractor. Kennedy, Milligan, Cattanach & McCluskey (2010) argue this is the reverse situation, as the most common parties in dispute remain the main contractor and subcontractor. However, the client and main contractor account for a significant portion.
Common parties in Dispute accessed on 15/11/19 (Malleson, 2018)
Main Causes for Disputes
The primary causes for disputes in various industries often revolve around financial disagreements, such as payment and budgetary issues. Additionally, conflicts frequently arise due to delays in project timelines, unexpected changes in project scope, and differing interpretations of contractual terms.
Extension of Time
Raj (2009)supports previous literature by stating that EOT claims are one of the most common and can only arise from a critical delay affecting contract completion. However, Alnaas, Khalil and Nassar(2014) argue that any delay to the progression of the contractors for reasons consequential to the client may argue they're entitled to an EOT even if this doesn’t delay the contract completion. Construction contracts generally allow the contract period to be extended if a delay occurs that is not the contractor's fault. The purpose of an EOT is to relieve the contractor of liability from such things as LADs for any time before the extended completion date (Rosenburg et al., 2017)(Keane & Caletka, 2015).
Furthermore, the benefit of an EOT for the employer is that it establishes a new contract completion date, preventing work completion time from becoming at large’(Klee, 2018, p. 299). The authors agree that an EOT is a provision in a contract whereby the contractor may request an extension to the original completion date should the client be responsible for the delay(Linnett, De Moraes, Lowsley, & Smith, 2015)(Eggleston, 2009). An EOT benefits the employer and the contractor (Linnett, De Moraes, Lowsley, & Smith, 2015). However, Eggleston (2009) contradicts this, stating that people within the industry use EOT claims to increase profitability via further loss and expense claims, which is also supported in Figure 5.
Final Account Valuations
A final account is an agreed statement for the amount paid to the contractor by the employer at the end of the contract. This is supported by Garner (2015), who states that a final account valuation is a conclusion of the contract sum that signifies the agreed amount of money the employer will pay the contractor. Furthermore, the final account typically includes any loss and expense associated with any EOT and any other claims, and it’s also an indication of the finalisation of disputes between parties(Garner, 2015).
Many people find having a single dispute at the end of the final account makes sense rather than having a series of ongoing adjudications throughout the project lifecycle (Contract Dispute Resolution Ltd, n.d.). In support of this, parties prefer resolving disputes that arise contemporaneously during a project to split disputes into more manageable sizes(Bell, 2019).
variation of percentage
Valuation of Variations
Variations are works that are not included in the original contract and contracted price(Iyer, Chaphalkar, & Patil, 2018). The valuation of variations may consist of expenses other than work described in the variation instruction. It is not uncommon that disputes often relate to contract variations, especially the method by which the variation is valued. Disagreements occur for such things as the value of the variation being greater than the perceived value returned. This, in turn, leads to disputes. Rules were incorporated into the standard form of contract for valuing additional work. However, disputes still arise about which valuation rule applies and how it is interpreted(Carolan, 2017).
Valuation of variations is amongst the most common causes of disputes arising, which the CCLS2018 supports in Figure 5, and according to Sutrisna, Proverbs, Potts, &Buckley (2004), this has long been recognised as one of the most common causes of disputes. Further evidence is included in the pie chart below to support these statements. Out of a total of 821 claims, 254 of these were raised due to variations. These variation claims can be due to a change in specifications or quantity (Iyer, Chaphalkar, & Patil, 2018).
Contractual Noncompliance and Errors/Omissions in Contract Administration
For this research, all three causes are grouped as all contractual related and appear to be the main cause of dispute. Aryal & Dahal (2018) state that the number one cause of dispute during 2016 was poor contract administration and failure to understand and comply with contractual obligations, which has continued throughout recent years. Figure 6GCDR2019 above states that these are still the main causes. Anand (2017) supports these claims, stating that disputes are mainly related to disagreements on the contract's terms and conditions or misunderstandings of the contractual obligations.
A study by Hasheminasab, Mortaheb & Fardini (2014)delves deeper into the root causes of this ongoing problem related to contractual obligations. It states the contractor’s attitude towards risk sharing is an unfair and inaccurate evaluation of contractors, leading to failure to perform their obligations. Some problems associated with contract administration are outlined by Sebastian & Davison (2011), who acknowledged that ambiguous specifications, scope change, delay of the completion date, behavioural issues, and external factors are only a few of a diverse range of causes.
Kitt (2015) states that early recognition is essential to reduce disputes arising from poor contract administration. Sebastian & Davison (2011) argue that going beyond identification is key to determining why these occur and using an organizational behavioural problem-solving model to identify the root causes of the risks.
Anand (2017) argues that to avoid disputes concerning contract administration, the Project Manager, contract engineer or quantity surveyor must be put in place to help improve the cordial relationship with the client and eliminate pre-contract risks. Delving deeper, Anand (2017)states subcontractors are not reading and understanding all clauses/terminologies and use external assistance to aid in the legal jargon.
Brief History of ADR
Between 1993 and 1994, Alternative Dispute Resolution (ADR) gained prominence and attention, largely attributed to a formal review by Sir Michael Latham, former construction minister and Member of Parliament for the Conservatives. Latham's announcement in 1994 emphasized the need for a less adversarial approach within the construction industry. He argued that to bring about change in the industry's dynamics, it was essential to examine the relationships between contractors and subcontractors. Latham stressed the importance of fostering positive working relationships between these key parties, recognizing their crucial role in successfully delivering projects. He underscored that disputes would persist unless mutual trust was established (Latham, 1994).
Latham's perspective extended beyond the UK, suggesting that the construction industry worldwide could benefit from adopting practices similar to those in the United States, where ADR was employed to prevent disputes from escalating into litigation. The review led by Latham became a significant and enduring topic of discussion, echoing similar reviews conducted in the 1950s through the 1970s. Subsequently, the Conservative Government Act of 1996 embraced the recommendations outlined in the Latham report, implementing legislative changes through The Housing Grants, Construction and Regeneration Act 1996 (HGCRA) (Davies, Fenn, & O'Shea, 1998).
A historical examination of ADR by Barrett & Barrett (2004) defined it as an alternative to court-based problem-solving methods, revealing that its roots extend far back in human history, playing a pivotal role in various cultures worldwide. Additional research, such as that by Sanchez (1996), pointed out that the Anglo-Saxons employed dispute resolution procedures resembling modern methods like adjudication, arbitration, mediation, and negotiation. These mechanisms were available to defendants during legal proceedings.
Methods of ADR
Methods of Alternative Dispute Resolution (ADR) encompass diverse approaches such as mediation, where a neutral third party facilitates discussions; arbitration, involving a binding decision by an arbitrator; and negotiation, allowing parties to reach a voluntary settlement outside the courtroom. These methods offer flexible alternatives to traditional litigation, promoting efficient and collaborative resolution of conflicts.
Negotiation
Negotiation is the most common alternative dispute resolution (ADR), normally the first step to resolve a conflict. This is supported by The Construction Index (2019) & She (2010), who state that negotiation remains the preferred resolution method. These claims are supported by the Arcadis GCDR 2019, where negotiation ranked number one overall for the most common method utilised for dispute resolution:
Most popular methods for resolving disputes Accessed on 17/11/19 (Arcadis, 2019)
This form of ADR requires all parties to provide documentation to support their claims to reach an equitable settlement of their assertions(Yates, 2011). It is the most cost-effective method and sometimes the most proficient. Negotiation can be divided into two separate categories: competitive and collaborative. Collaborative negotiation focuses on creating a ‘win-win’ scenario where all parties involved get part or all of what they were looking for. This approach produces the best results in building long-term relationships and minimising conflicts(APM, 2019).
This method has advantages in terms of cost and time as it provides quick turnaround inexpensively, offering full control of the process and its outcome due to an in-house procedure. Dispute Prevention and Resolution Services (2017)reports on disadvantages associated with negotiation and includes no guarantee of resolution and no legal precedence. It can also be used as a stalling tactic to prevent other parties from asserting their legal rights. Santiago (2019)supports this, suggesting that enforcing decisions may be difficult because decisions depend on the parties' goodwill, and poor negotiation skills may lead to a stalemate.
Mediation
A study by Gould (2010)looked into the use of mediation in UK construction disputes concentrating on parties at the Technology and Construction Court (TCC) in London, Birmingham and Bristol. These participants were interviewed on how they settled their disputes and their mediation experiences during litigation. The results showed that 35% of the cases settled after commencing litigation in the TCC used mediation.
The survey also looked at cost savings attributable to settled mediations, which were colossal, and successful mediation was settled within the stipulated litigation time scales (Gould, 2010). Gregory-Stevens, Frame & Henjewele (2016) support this by suggesting mediation has advantages, enabling disputes to be resolved at reduced cost and providing greater satisfaction to all parties than litigation. Furthermore, research by Byrne (2016) states mediation is non-binding, eliminating the judge's decision and giving you greater control over the outcome.
In contrast, Bennett (2018) states that no legal professional to enforce legal proceedings could lead to the procedure's exploitation. In addition, both parties must fully commit to the procedure and choose a mediator to prevent any prejudice to either side. This can prove to be a difficult task as the parties are already in disagreement. Trussell, Clark & Agapiou (2016) counter it by stating that despite Bennett's (2018) opinions, parties must compromise their positions to settle. This requires full discovery, which results in a negative impact on time and costs. At the same time, mediation focuses on making deals and overlooks the right and wrongs, supporting earlier literature on the exploitation of the procedure.
Furthermore, Bennett (2018)says the choice of the mediator can have a crucial effect on how the mediation is carried out, and a good mediator cannot be successful when the parties truly do not wish to settle. However, in contrast, a bad mediator may hinder a successful settlement when the parties wish to settle.
Adjudication
Adjudication can be defined as an interim dispute resolution process where all parties submit their dispute to an independent third party for a decision(Pickavance, 2016). Gaitskell (2007) states adjudication is the most important alternative dispute resolution (ADR) process in the UK and Commonwealth countries. In contrast, Bailey (2014) argues that arbitration was and had been the dominant form of ADR in construction contracts for some time.
Sakate& Dhawale (2017) state the adjudicator is a neutral individual who is not involved in the day-to-day running of the contract and often has no meeting with the adjudicator. Thwaites(2016) expands on this by stating this endeavour's drawbacks, such as being unable to cross-examine. This has been recognised by the courts, which have clarified that they will enforce the adjudicator's decision even if it is wrong based on the facts or the law.
The main advantages associated with adjudication are time and cost. Perrin (2014) states that its strength lies in its potential to save money and keep the project on track, which other forms of ADR may have derailed. Speed is an advantage of adjudication over other methods, such as arbitration or litigation. The decision is made within 28 days of service of the referral document, which is extremely fast compared to litigation(Thwaites, 2016).
Furthermore, regardless of the outcome, both parties must bear their costs, and although this is expensive to themselves, it is over a short period compared to litigation. If unsuccessful, they don’t risk paying the other parties' costs. In contrast, although this is a speedy process, this means the process is inherently “rough and ready”, thus meaning there is not enough time in the adjudication process for any detailed and careful analysis of the facts and issues of the dispute(Thwaites, 2016).
Arbitration
Before introducing other forms of ADR, arbitration and litigation were the main methods of resolving disputes. Some industry professionals feel it is the most effective way of resolving disputes. It is perhaps the oldest form of ADR and is used widely in construction disputes. To define this method of ADR, Mason(2016) states arbitration is an alternative to litigation whereby parties refer to an existing or future dispute to the determination of one or more independent persons acting judicially.
In this method, the arbitrator expresses the decision in an award, which becomes legally binding and enforceable in a court of law. Arbitration is similar to litigation in many ways and has been described as ‘litigation in suits rather than wigs’. Both arbitration and litigation are intended to be final and require both parties to prepare statements of their cases similar to litigation(Mason, 2016). However, a study by Khekale & Futane (2015)argues that many dissimilarities between arbitration and litigation can be deciphered. No dispute commented that there is little procedural difference between the two processes.
Traditional Method of Dispute Resolution
Traditional dispute resolution methods often involve formal court proceedings, where legal professionals present cases before a judge or jury. These adversarial processes rely on legal rules and judgments to resolve conflicts, contrasting with the more collaborative and flexible nature of Alternative Dispute Resolution (ADR) methods.
Litigation
Even though alternative dispute resolution (ADR) can be utilised, court proceedings are still one of the most common forms of resolving disputes(Cook, 2016). Litigation cases are referred to the Technology and Construction Court (TCC), a specialist court governed by the Civil Procedure Rules (CPR) and TCC guide. The advantage of Litigation is that a judge will manage the claim process throughout the court proceedings. Complex issues can be dealt with, and the parties obtain a binding and enforceable decision.
Khekale & Futane (2015) state that the rising cost, delay, and risk of the litigation process have prompted the industry to look for new and more efficient ways. Gaitskell (2005) supports this statement by expressing that most disputes are multi-party affairs with many solicitors and counsel, meaning a lengthy and expensive process. Consequently, because of the CPR, litigants must undergo several procedures and incur substantial costs before proceeding.
There is still a place for litigation within dispute resolution despite being used less frequently due to the courts referring cases to ADR under the CPR. Litigation can be seen as a vital support role and a last resort when dealing with cases where ADR has failed (Wood et al., 2017). Khekale & Futane (2015) counter this by stating that despite Wood et al.'s (2017)opinions, litigation is not as efficient in terms of cost and time. However, Vos (2019) argues that not enough has been done and that the courts must implement intelligent technology reform in our current system.
Conclusion
To summarise, the construction industry is a very complex and challenging environment, and with this comes conflicts, which are of great concern to the industry. To manage this effectively, the claims management process must ensure that every party involved handles claims arising fairly. The literature review covers the main causes of disputes in the built environment and the dispute resolution methods to resolve these claims.
Interview Analysis
This chapter's primary aim is to investigate the effectiveness of alternative dispute resolution (ADR) in construction. For this purpose, professionals with ample industrial experience have conducted interviews directly involved in the dispute resolution process. Meanwhile, to analyse the data, thematic and statistical analysis have been used to shed light on the extent to which the study's primary question is being addressed and test the hypothesis. Lastly, the discussion has also been conducted to evaluate the extent to which the objective of the overall study is achieved.
Participant Code | Category | Job Role | Date |
P1 | Affiliate Company | Quantum Expert | 17/02/2020 |
P2 | Legal Solution on Live Projects-Third part representative | Chartered Surveyor | 20/02/2020 |
Interviewee Profile
Semi-structured interviews were conducted with the above participants, who had a minimum of 10 years of experience within ADR. The minimum sample size for interviews was two, which was achieved. Furthermore, the transcripts obtained were of a greater scale than normal, and the interviewees targeted were specialists within the ADR sector, ultimately providing a richer insight.
Thematic analysis is the most widely used qualitative data analysis method that emphasizes identifying, analysing and interpreting patterns present in the data. It has been stated that interview transcripts contain similar trends identified and analysed to address the research questions and can also be used to develop a theoretical framework(Braun, 2014). Meanwhile, it is also a more flexible method for analysing qualitative data since the researcher can identify the factors present in the data based on which themes are constructed, and transcripts comprising common answers are analysed and discussed under each identified theme. Similarly, interviewees are referred to as P1 and P2, and the line number of each transcript references a statement from the transcript.
Most Common Causes of Disputes Between Clients and Contractors
Disputes between clients and contractors commonly stem from unclear project specifications, timeline misunderstandings, scope changes, project delays, and payment disagreements. Clear communication and well-documented contracts are essential to prevent and address these challenges in construction projects.
Extension of Time
Disputes are contradictions or disagreements between two parties over a matter, project, or event. The most common disputes being highlighted by P1 (66-69) are that EOT is a major issue, and P2 (82-87) states that time and budget constraints are issues affecting parties resulting in disputes. The conflict remains an EOT because when a party asks for this, it must be granted at the time of the event, as highlighted by P1 (60-61). P2 (106-108) supports this, stating that EOTs are quite subjective, which can be conflicting, meaning clients struggle to understand why more time is needed. In this regard, Alnaas, Khalil and Nassar(2014)and Keane &Caletka(2015)state contractors also ask for EOT due to reasons consequential to the client. However, they still claim EOT even when the project will not be delayed, and the core reason is to get relief from any liabilities due to any delay in time.
Hence, they already claim EOT. Meanwhile, P1(66-69) also stated that clients do not know how to claim EOTs, leading to ignorance towards their responsibilities and causing further conflict when trying to claim this time back. This can be correlated to not understanding the contract obligations. Although P1 and P2 have similar views on EOTs, P2 (92-94) suggested they do not have many conflicts about EOTs as they fall away quickly but more about the monetary side of things, which can be interpreted as differing opinions. (McCall, 2017)
Final Account Variation
P2 (228) (117-123) states you now have full-blown final accounts full of EOTs for reasons such as subcontractors not performing and affecting the client and main contractor. This is supported by P1 (102-104), stating frequent changes and many variations are major reasons why disputes arise over the project. Issues and conflicts are inevitable given the industry involves various parties in one project, and their work is interdependent. Furthermore, another issue highlighted by P2(88-89) is that there is a 99.9% chance of change or variation because the contract allows for it, and the emergence of conflict depends on how well parties trust one another. Therefore, final account variations are highly expected but may not always lead to conflict.
Valuation of Variation
P1 (105-108) states project change and inability to agree, even if viable, is the main cause for dispute. P2 (89-90) states clients do not mind paying for change if it is not too much, implying that the variation will likely be rejected if the valuation is too costly. It has also been discussed that variations are inevitable and are certain to occur irrespective of the proper contract implementation. While all variations do not lead to conflict, developers, commercial entities, offices, or businesses may lead to conflict since variations tend to require more time and costs. The other party may not agree on the valuation of variations due to their reasons as they consider the time as money, as reported by P2 (95-97). Hence, the parties may conflict with the overvaluation of variation outside of the contract, causing conflict. As per Carolan (2017), the rules of valuation and how they are interpreted create conflicts between the parties.
Non-compliance with Contractual Obligations
P1(56-57) (61-63)(81-84) suggests the provisions for EOTs are not very good, and both client and contractor do not adhere to these. They say companies have not been applying for EOTs properly, and even senior staff do not fully understand the obligations associated with the contract.
Similarly, Anand (2017) states in the literature that subcontractors are not reading and understanding the clauses and terminologies, and P2 (326-330)(343-346) supports these comments, stating neither party has a clue when it comes to an understanding the contractual obligations because they do not even read the contract.P2 (124-134)(378-384)states contractors sometimes suddenly say we cannot do the work in the remaining period, or other parties not performing then the whole project suffers leading to further claims such as EOTs. The responses of P1 and P2 imply a lack of compliance with contractual obligations. This can lead to further claims, such as EOTs, linked to other common causes, such as final account variation and valuation disputes.
ADR vs Traditional Method
ADR, such as mediation or arbitration, emphasizes collaborative resolution outside the courtroom, offering flexibility and quicker outcomes compared to the traditional method, which involves formal court proceedings, often characterized by adversarial processes and longer timelines. The choice between ADR and traditional methods depends on the nature of the dispute and the parties' preference for a more cooperative or confrontational approach.
Preference
Interviewees were asked about their thoughts on alternative dispute resolution (ADR) compared to traditional methods for handling disputes. Interviewee P1 (99-101) (120-121) stated ADR is mainly preferred due to time-related constraints and has been preferred since the late 90s since the process of courts is long and in construction, time is money. Similarly, Jaffar, Tharim&Shuib(2011) state that irrespective of the source of the dispute and the issue's relation, evolution is key since time is money (McCall, 2017). P2 (197-199) supports this, stating litigation is incredibly expensive and slow and has always been this way. The response indicates that ADR is preferred over legal proceedings for settling disputes.
P1(154-155) states they were not in the industry before ADR and now make a living from this, so it could be interpreted as potential bias over the preference of ADR instead of litigation. However, interviewees insist on using ADR as it is effective for all parties regarding conditions, situations, and frequency of disputes. P2(207-211) (285-287) supports the claim that parties prefer ADR as court proceedings were being used to send companies that could work in the plaintiff’s favour as they would not have to pay anybody. Also, the process is more efficient since ADR involves solicitors, arbitrators and third parties to resolve disputes.
Therefore, the UK government suggests ADR through third-party involvement before engaging in court proceedings. This is because most issues are resolved with ADR with a high success rate(GOV.UK, 2015). It is determined the respondents have commonly preferred ADR to traditional methods, given each party would lose a great amount of time and cost to approach a resolution.
Negotiation
P1 (180) states the quickest way to resolve a dispute is by negotiation because it offers a quick way to resolve the dispute in which two parties are face to face and put all their issues together to approach a potential solution. Similarly, P1(256-259) further highlighted in their experience that negotiations favoured methods to resolve issues when they arise. In this regard, the Construction Index (2019) and She (2010) have stated that negotiations remain the most favourite because they are the first step towards resolving a conflict. Meanwhile, negotiations can take form collaborative and competitive, where most of the time, a collaborative approach is undertaken, leading to a win-win scenario for all involved in the conflict(APM, 2019).
Mediation
Concerning mediation, P2(160-163)states that in this process, they remain the third party and start communication between them. The respondent also highlighted that communication is the issue which creates a problem, and mediation is the process in which communication is the only way to resolve the dispute. Furthermore, P2(299-304) states that mediation works well within commercial disputes between the parties; the mediation process starts when parties contact each other to resolve the issue. Therefore, it is determined that the parties prefer mediation when negotiations do not work.
In contrast, the basic difference between mediation and negotiations is that negotiations do not have a third party or mediator. Still, a third person leads the parties in the mediation process and tries to resolve the issue. Meanwhile, due to the time constraints and costs associated with the other legal procedures, these ADR methods are preferred as this is supported by P2 (448) (454-456), stating mediation is the quickest method.
Adjudication
P1(123) states adjudication is cheaper and quicker when parties do not want to be involved in a litigation process; as per the literature, adjudication is when all parties submit their arguments, and a third party decides. Similarly, P1(273-276) states that adjudication is much quicker and can give a decision within 28 days, and P2 (218-220) (233)supports this, stating it is considered quick and dirty because the decision could be against of the party. Each party must follow the decision, which must be done in 28 days. However, P1(324-326) states an adjudication can take 46 days to resolve the conflict. As per the pace of work in the construction industry, this can be costly to both parties in terms of losses because each party's work would probably be halted for the period.
Arbitration
P2(404) states that the arbitration process is very slow and as expensive as courts; hence, resolving the conflict between the parties could take a lot of time. In support of this, P1 (121-122)states that arbitration was mainly used at the beginning of ADR. However, due to the HGCRA, everyone moved towards adjudication as it was cheaper and quicker. Furthermore, P1 (191-194) (315-316) states you can spend months, even years, on arbitration costing hundreds of thousands, and then it still gets to litigation, which is like a double down on time and cost. Also, Mason(2016) states that arbitration is similar to litigation, supported by P1 (319-320), stating a tribunal they were part of was effectively an arbitration. Therefore, it is evident that despite being part of alternative dispute resolution (ADR), it is not as effective and efficient as other methods of ADR.
Effectiveness of ADR in Terms of Cost and Time
ADR is often more cost-effective and time-efficient than traditional litigation, as it minimizes court-related expenses and accelerates dispute resolution through mediation or arbitration, providing a quicker and more economical path to resolution for parties involved.
Positivity
The effectiveness of ADR has been discussed by interviewee P1 (155-156) (228-229)(181-182), stating that it has to be a positive, certainly the theory of it and that ADRemerges as the most appropriate method to resolve the conflict since itis much faster and cheaper than litigation.P2 (397) (407-408) supports this by stating that ADR has a million good reasons of being incorporated into the standard form of contract and a benefit is it is confidential, and you have some form of experts. The responses imply that two parties can significantly save their company reputation, time and costs associated with the legal process. Also, parties involved would not normally agree to court since ADR is considered more effective than litigation, saving time, cost, and the project.
In addition, UK courts and guidelines suggest that pre-action conducts and protocols in para 8-11 litigation should be the last option for parties and consider different forms of ADR that could enable parties to approach consensus before initiating legal proceedings. Meanwhile, para 9 further emphasizes settlement being engaged in legal proceedings (Justice GOV UK, 2020). Therefore, it is determined that the positivity of ADR always remains for the parties; even the legal department suggests engaging in ADR before and even after proceedings to settle. In this regard, P2(281-282) (292-293)(272-273) supports ADR, stating it’s a major positive due to its effectiveness, implying the industry wouldn’t use it otherwise and claiming that ADR is positive when comparing this to litigation.
Negativity
Similarly, P1 (266-269)ADR stated that each party might not be happy with negotiations but willing to accept them since no party wants further delays that would have inevitable negative consequences regarding monetary losses. Also, when parties engage in a dispute, it tends to affect their relations to some extent but not always, as reported by P1 (207-211), stating any parties go against each other to resolve conflicts and then work with each other again on the next project. Furthermore, arbitration is said to be equal to litigation in terms of time and costs.P1 (377-380) states when costs soar, litigation is essential; otherwise, parties will suffer colossal losses. Therefore, it is going to be a costly settlement either way.
Reliance
The interviewees' responses indicate that negotiations are the best way to resolve the issue and are only possible in pre-trial conditions. Hence, ADR is a much quicker and cheaper process than litigation in the industry; it is also stated that in the process of adjudication, the decision may be obtained within 28 days, but if the litigation process is followed, that would take months and would probably be a costly decision for each of the party. This decision may also be against any parties, creating relations complications. Therefore, both parties will suffer irrespective of a favourable decision in either condition. Thus, alternative dispute resolution (ADR) is the most effective way to sort out the problems through mediation, considering the consequences of delay, and it would also maintain the best relationship between the parties. P1(125-131) supports these claims by stating the industry relies on ADR rather than litigation, as it’s looked upon unfavourably to go to litigation if you haven’t tried ADR first.
Questionnaire Analysis
A pilot questionnaire confirmed the questions to be coherent and take around 6 minutes to complete. Following this, construction professionals with diverse experiences and job titles were approached mainly via the author's LinkedIn account. 71 people were contacted mainly by direct message via LinkedIn but also via email, and 244 people view
13.3%.
Respondent’s Experience
Approximately how long have you or your organization been using ADR services? | ||
| Frequency | Per cent |
More than 5 years | 37 | 88.1 |
3-5 years | 3 | 7.1 |
1-2 years | 1 | 2.4 |
Less than one year | 1 | 2.4 |
Experience Level
Table 3 demonstrates the level of experience among the respondents of the survey, and findings show that the majority of the respondents consisted of 37 (88.1%) with experience over five years, and some other respondents also had experience levels ranging from one year to 5 years. The majority of the respondents were highly experienced in the construction industry. Hence, this has provided more appropriate responses reflecting the true conditions of the industry.
Question 2 - Role of Respondents
Role | ||
| Frequency | %age |
Contracts Manager | 3 | 7.1 |
Director | 13 | 31.0 |
Chartered Construction Manager | 1 | 2.4 |
Adjudicator/Arbitrator/Consultant | 6 | 14.3 |
Quantity Surveyor | 3 | 7.1 |
Claims Consultant | 3 | 7.1 |
Regional Director | 2 | 4.8 |
Planning Manager | 4 | 9.5 |
Commercial Manager | 1 | 2.4 |
Chief Executive Officer | 1 | 2.4 |
Others | 5 | 11.9 |
Table 4 - Role of Respondents
Table 4 demonstrates the roles of respondents included in the survey. It is determined that 13 (31%) respondents were directors of the companies involved in construction, followed by Adjudicator/Arbitrator/Consultant 6 (14.3%), and others included contract managers 3 (7.1%) and Planning Manager 4 (9.5%). Most respondents are from higher posts that are more effective and provide more valuable responses than those at lower levels.
Question 3
Thinking about the contracts you were involved in within the last 12 months, how many of these went into dispute? | ||
| Frequency | %age |
More than Six | 9 | 21.4 |
Five or more | 16 | 38.1 |
Three | 2 | 4.8 |
Two | 8 | 19.0 |
One | 7 | 16.7 |
Number of disputes in the last 12 months
Table 5 illustrates the number of disputes faced by the respondents in the last 12 months; it shows that 9 (21.4) respondents stated more than six, 7 (16.7%) stated one, 16 (38%) stated five or more, 8 (19%) stated as two. Lastly, 3 (4.8) respondents stated they encountered three cases last month. This implies that, on average, 8 disputes are encountered by respondents yearly.
Question 4
Who were these disputes between? | ||
| Frequency | %age |
Client and main contractor | 1 | 2.4 |
Main contractor and subcontractor | 3 | 7.1 |
Consultant and contractor | 4 | 9.5 |
Subcontractor and subcontractor | 1 | 2.4 |
Client and main contractor, Main contractor and subcontractor | 1 | 2.4 |
Client and main contractor, Main contractor and subcontractor, Consultant and contractor, Subcontractor and subcontractor | 32 | 76.2 |
Relationship of Parties in Dispute
Table 6 illustrates the most common disputes between all parties involved, and there is no specific majority in which parties mostly come into dispute. This implies that a dispute can be between any party at any time, irrespective of the party itself and its role; when a party’s interest is compromised, this leads to a dispute. However, the table shows that 32 (76%) mutually stated that a dispute might occur between the client, the subcontractor, and everyone involved.
Question 5
Of these claims, what method of ADR was utilised to resolve the dispute? | ||
| Frequency | %age |
Negotiation | 11 | 26.2 |
Adjudication | 2 | 4.8 |
Mediation | 4 | 9.5 |
Arbitration | 1 | 2.4 |
All | 24 | 57.1 |
Method of ADRutilised
Table 7 implies that most respondents used all these methods in resolution. Less serious disputes will likely be resolved through negotiation, mediation, or arbitration based on mutual respect and understanding. However, when these prove ineffective in handling the complex nature of the dispute, parties refer to adjudication for resolution. Therefore, it is determined that all methods of ADR are being used based on the complexity of the case and the type of party involved.
Question 6
In your most recent dispute, how long did the process take months? | ||
| Frequency | %age |
More than twenty | 4 | 9.5 |
Fifteen to twenty | 6 | 14.3 |
Ten to fifteen | 8 | 19.0 |
Five to ten | 4 | 9.5 |
One to five | 18 | 42.9 |
One or less | 2 | 4.8 |
Duration of dispute resolution
Table 8 illustrates the majority of respondents have stated that a dispute takes 1-5 months to resolve. It can be interpreted that resolution mainly depends on the complexity and matter of a dispute between the parties. Hence, common disputes like EOT and failing to comply or understand the contracts could be resolved sooner than others.
Question 7
What were the main issues in dispute during the past 12 months? | ||
| Frequency | %age |
EOT | 9 | 21.4 |
Final account valuation | 1 | 2.4 |
Valuation of variations | 1 | 2.4 |
Failing to understand & comply with contract obligations | 2 | 4.8 |
Loss and expense | 1 | 2.4 |
Failing to understand & comply with contract obligations, Errors and/or omissions in the contract document | 3 | 7.1 |
EOT, failing to understand & comply with contract obligations | 1 | 2.4 |
EOT, VOL | 2 | 4.8 |
EOT, L&E, FAV, VOV, FTU& comply with contract obligations | 2 | 4.8 |
EOT, L&E, FAV, VOV, FTU & comply with contract obligations, Errors and/or omissions in the contract document | 1 | 2.4 |
EOT, FAV, VOV | 2 | 4.8 |
EOT, L&E, VOV | 1 | 2.4 |
EOT, L&E, FAV, VOV | 1 | 2.4 |
EOT, L&E, Other | 1 | 2.4 |
EOT, FAV | 3 | 7.1 |
EOT, VOV, failing to understand & comply with contract obligations | 2 | 4.8 |
EOT, L&E | 2 | 4.8 |
EOT, L&E, FAV, VOV, Errors and omissions in the contract document | 3 | 7.1 |
Errors and/or omissions in the contract document | 1 | 2.4 |
L&E, VOV | 3 | 7.1 |
Main issues in dispute
Table 9 illustrates the number of disputes being highlighted by the respondents. Most respondents have included EOT as the most common dispute, followed by failure to comply with contractual obligations and loss and expense or valuation of variations. Meanwhile, if the table is compiled, 6 common disputes among the parties lead to disputes.
Question 8
What factors would influence your decision to choose a means of settling disputes? | ||
| Frequency | %age |
Cost | 18 | 42.9 |
Time | 6 | 14.3 |
Cost, Time, Confidentiality, Relations and Complexity | 18 | 42.9 |
Factors influencing settling disputes
Table 10 illustrates the most common trend for settling disputes: cost, followed by time, supporting the consensus that time is construction money, which is also expressed by interviewee P2 (97). Therefore, it can be determined that cost and time influence decision factors. Still, some parties also consider confidentiality, business relations, and the complexity of a dispute when deciding how to resolve it.
Question 9
Do you think there are fewer or more advantages over disadvantages of using ADR services? | ||
| Frequency | %age |
More | 35 | 83.3 |
Equal | 4 | 9.5 |
Less | 2 | 4.8 |
Pros and cons of using ADR
Table 11 illustrates whether ADR has fewer or more advantages and disadvantages. The most common trend by a significant portion was 83.3% stated that there are more advantages than disadvantages. This implies that most professionals prefer utilizing the ADR service to resolve disputes.
Question 10
What would you consider to be the most effective method of dispute resolution? | ||
| Frequency | %age |
Negotiation | 10 | 23.8 |
Adjudication | 2 | 4.8 |
Mediation | 1 | 2.4 |
Arbitration, Negotiation | 2 | 4.8 |
Arbitration, Adjudication, Mediation, Negotiation | 11 | 28.5 |
Mediation, Negotiation | 1 | 2.4 |
Arbitration, Adjudication | 13 | 31.0 |
Arbitration | 1 | 2.4 |
Preferred method of ADR
Table 12 illustrates the most common trend of 23.8% of participants who believe negotiation is the most effective. This is supported by interviewees P1 (256-257)and P2 (426-427), who state this is the best way to resolve disputes. On the other hand, 28.5% of participants stated all four types of methods are preferred. Still, as the literature supports, negotiations are normally the first step, and if this fails, then other methods are used which become the most effective.
Question 11
Do you think ADR has had a positive or negative impact on time? | ||
| Frequency | %age |
Extremely negative | 1 | 2.4 |
Moderately negative | 2 | 4.8 |
Slightly negative | 1 | 2.4 |
Neither positive nor negative | 4 | 9.5 |
Slightly positive | 9 | 21.4 |
Moderately positive | 13 | 31.0 |
Extremely Positive | 11 | 26.2 |
ADR about the impact on time
Mean | 5.4634 |
Standard Deviation | 1.50163 |
Variance | 2.255 |
Question 11 Descriptive statistics
Table 13 illustrates a common trend of ADR having a 78.6% positive effect on time ranging from slightly to extremely, whilst 9.5% remained neutral, stating neither positive nor negative. On the other hand, 9.6% of respondents stated ADR hurts time from slightly to extremely. Furthermore, the mean response of 5.46 indicates that, on average, respondents stated ADR has a slightly positive impact on time. Still, this mean value could increase or decrease by a standard deviation of 1.50. Meanwhile, it can be stated that the majority agreed ADR has a positive effect on time, and the few who disagreed may have had a bad experience with ADR.
Figure 10 - Histogram of time |
Question 12
Do you think ADR has had a positive or negative impact on cost? | ||
| Frequency | %age |
Extremely negative | 1 | 2.4 |
Moderately negative | 6 | 14.3 |
Slightly negative | 3 | 7.1 |
Neither positive nor negative | 6 | 14.3 |
Slightly positive | 8 | 19.0 |
Moderately positive | 8 | 19.0 |
Extremely Positive | 10 | 23.8 |
Table 15 – Impact has ADR on cost
Mean | 4.8571 |
Standard Deviation | 1.81553 |
Variance | 3.296 |
Question 12 Descriptive statistics
Table 15 illustrates the common trend of ADR having a 61.8% positive effect on cost ranging from slightly to extremely, whilst 21.3% of participants negated and stated it hurts costs, with 6 respondents stating ADR has a neutral effect on costs. Furthermore, the mean response of 4.85 implies that respondents have slightly agreed but have a mean of less than 5, suggesting that many participants did not agree with the statement. The standard deviation is also slightly higher, indicating higher fluctuations in responses and that many professionals did not agree with the statement and either remained neutral or gave a negative opinion. However, it can be claimed that the majority agreed ADR has a positive effect on cost given that it saves costs in two ways: one in terms of money and the second in terms of time is construction money.
Figure 11 - Histogram of cost |
Question 13
EOT is the number one cause of claims leading to alternative dispute resolution. Do you; | ||
| Frequency | %age |
Disagree | 6 | 14.3 |
Somewhat disagree | 7 | 16.7 |
Neither agree nor disagree | 6 | 14.3 |
Somewhat agree | 9 | 21.4 |
Agree | 9 | 21.4 |
Strongly agree | 4 | 9.5 |
Table 17 - EOT claims
Mean | 4.4878 |
Standard Deviation | 1.59878 |
Variance | 2.556 |
Question 13 Descriptive statistics
Table 17 illustrates the most common trend, 52.3% in agreement, ranging from somewhat to agree to strongly support literature (Raj, 2009). Meanwhile, 14.3% of respondents remained neutral, implying they may have encountered the same claims frequently. Furthermore, the mean response of 4.48 indicates, on average, the response was between somewhat agree and neither agree nor disagree. Therefore, it can be stated that those respondents have experienced frequent disputes other than EOT; hence, they somewhat agreed and remained neutral.
Figure 12 - Histogram on EOT |
Question 14
Do you think the ever-increasing complexity of construction contracts has led to more contract complications and disputes? | ||
| Frequency | %age |
Probably not | 8 | 19.0 |
It might or might not | 4 | 9.5 |
Probably yes | 18 | 42.9 |
Definitely yes | 12 | 28.6 |
Complexity of contract leading to disputes
Mean | 3.8095 |
Standard Deviation | 1.06469 |
Variance | 1.134 |
Question 14 Descriptive statistics
Table 19 illustrates a common trend of a total of 71.5% stated probably to definitely yes to question 14, implying respondents agreed that the increasing complexity of contracts has led to more complications, thus leading to more disputes. In addition, the mean response to this question was 3.80, suggesting, on average, the responses fall within probably yes and might or might not; hence, it can be interpreted that a portion of the study did not agree, but some portion also agreed on this statement. Therefore, it is determined there may be certain projects in which disputes occur due to the complexities of the contract, but this is not the case. On the other hand, professionals had mixed opinions that emphasized remaining neutral on the statement. Thus, the mean response also fell within that category.
Histogramon complexity of contracts
Question 15
Do you think Litigation is the better or worse way of dealing with disputes than ADR? | ||
| Frequency | %age |
Much worse | 16 | 38.1 |
Moderately worse | 4 | 9.5 |
Slightly worse | 13 | 31.0 |
About the same | 3 | 7.1 |
Slightly better | 1 | 2.4 |
Moderately better | 3 | 7.1 |
Much better | 2 | 4.8 |
Litigation vs ADR
Mean | 2.6667 |
Standard Deviation | 1.77608 |
Variance | 3.154 |
Question 15 Descriptive statistics
Table 21 illustrates the most common trend recorded: respondents thought litigation was much worse than ADR at 38.1%. A further 31% stated slightly worse, meaning a total of 69.1% overall implied ADR is a better option in solving disputes. However, a total of 14.3% believed litigation to be better. Therefore, it can be said the majority agreed litigation is worse than ADR, suggesting it is not as effective or efficient. Furthermore, the mean response for this question was 2.66 with a standard deviation of 1.77, implying that, on average, respondents stated litigation is slight to moderately worse than ADR. This is because ADR is cheaper and quicker in getting a settlement. In contrast, litigation is considered the worst-case scenario since it takes longer and incurs more costs, increasing losses for both parties.
Independent Sample’s T-test
Independent Sample’s t-test is used to determine if there is a statistically significant difference between the mean of the two groups. Through this, the opinion of professionals from the construction industry was determined over the positive and negative effects of ADR on time. It costs on their experience of more than 5 years and between 3-5 years. The results of the test are provided as follows:
Independent Sample's T-test
The null hypothesis of the Chi-square is that the first variable (positive effect on time) is independent of the second variable (positive effect on cost), whereas the alternate hypothesis is otherwise. The p-value of the chi-square is 0.00, implying that there is enough evidence to reject the null hypothesis that positive effects on cost and positive effects on time are independent; hence, the alternate hypothesis is accepted that the relationship between positive effects on time and positive effects on costs exists. Therefore, we can conclude that those respondents said that ADR has a positive effect on time and that ADR has a positive effect on cost. This also indicates the importance of time and cost in the construction industry and that if the time of the project increases, then the cost would also increase and vice-versa.
One-way ANOVA (Analysis of Variance)
This section analyses variance (ANOVA) to determine if the population mean of multiple groups is significantly different across populations. The null hypothesis of the ANOVA is where the mean of all populations is the same, and the alternate hypothesis is that at least one of the group’s mean is not equal to the population of the other group’s mean. The figure below illustrates the result of ANOVA in which the difference over the most common method of ADR is determined across professionals with different experience levels in construction.
ANOVA Test 1
One-Way ANOVA test 1
Figure 14 above elucidates f=1.54 [Sig. 0.219] suggesting that the sig value of the ANOVA is greater than the selected significance 0.05 (5%); hence, there is enough evidence not to reject the null hypothesis and that all populations across the groups' means are the same. This implies that there is consensus among the industry professions to select the common method of ADR, and experience has no role in determining the method of ADR. It can be interpreted that the consensus among the professionals over the common ADR methods shows that ADR is the most common concept in the construction industry, and each of the professionals, irrespective of experience, prefers ADR to the traditional method of handling disputes.
ANOVA Test 2
- One-Way ANOVA test 2
The figure above shows the results of the second ANOVA test, where it is tested that there is consensus among professionals in considering factors when choosing a means of settling disputes by differing experience levels. Since the sig value of the test is 0.66, which is higher than the significance level, it is evident that professionals have a consensus in considering the factors when choosing to handle disputes. No role of experience considers those factors. This also implies that experience has no role in choosing the dispute's methods.
ANOVA Test 3
One-Way ANOVA test 3
Discussion and Conclusion
Industry professionals have used ADR to solve disputes immediately to save costs and time. It has been discussed by Alaloul, Tayeh, &Hasaniyah (2019) that the construction industry is highly sensitive to time and cost because if a project is delayed, everything associated with it gets affected. However, it is nearly impossible to avoid disputes in the construction industry since the complexity of the contracts has increased, meaning the probability of dispute increases. In this regard, Malleson (2018) argues disagreements may differ in intensity and levels because various parties are involved in a construction project. The NCCLR 2018 has indicated that 19% of the contracts in construction have at least one dispute, and 4% of contracts have four disputes supporting these claims.
It has become common not to have a dispute about construction contracts. The emergence of disputes is not a major issue; conflict resolution between the parties is the major issue since time is money in the industry. In this regard, the literature suggests the most common causes of the disputes among the parties are EOT, final accounts valuation, valuation of variations and non-compliance to the contract obligations (Keane & Caletka, 2015)(Garner, 2015)(Iyer, Chaphalkar, & Patil, 2018)(Aryal & Dahal, 2018). Also, findings from the interview and questionnaire analysis suggested that EOT, valuation issues and non-compliance to contract obligations are the most common reasons behind the disputes.
Furthermore, disputes have been resolved through litigation, but since this process takes months to come to a settlement, parties would find it difficult to continue work, resulting in a loss for all involved. Thus, academic literature and professionals have criticised litigation, hence the need for more efficient methods due to the risk of higher costs and delays (Khekale & Futane, 2015). Therefore, the need for the most efficient resolution method has risen, and, in this regard, ADR was distinguished.
Therefore, the following study was conducted to research ADR, gather insight into the reasoning for its use and investigate and identify the main methods of ADR. For this purpose, industry professionals conducted interviews and questionnaires to examine how much ADR is more efficient and has been used in construction contracts for dispute resolution. The primary findings indicated that EOT, valuation of variation, and non-compliance to contract obligations are core reasons for disputes. Furthermore, each party must compromise to approach a settlement despite initiating legal proceedings in a dispute settlement process. Each party also bears a great loss in terms of cost and delay in the project, as suggested (Bennett, 2018). Similarly, the survey findings suggest that a dispute may take months to resolve, which is unacceptable for each party. Hence, ADR emerges as the best solution against traditional methods.
In pursuance of the research objective, the interviews and survey findings have indicated the respondents have stated that they prefer to use ADR due to time-related constraints. Since the industry incurs many changes and variations, they don’t have to refer straight to court for a resolution. This is because the contractor or client can claim compensation due to delays in the work. Hence, parties prefer to utilise the most efficient method of resolution. In pursuance of the most efficient resolution method, the survey findings show that most respondents have indicated that ADR has a moderately to extremely positive effect on time and cost, implying that ADR techniques reduce costs and save time compared to traditional methods.
In addition, respondents were interviewed regarding the effectiveness of ADR, and findings suggest that the most efficient way of resolving conflict is through negotiations. Still, if this is deemed unsuccessful, other forms of ADR would be utilised to resolve, and industry professionals prefer these methods. Similarly, the study hypothesised that ADR has made settling disputes more effective in terms of cost and time due to alternative methods. The findings from the interviews and questionnaire suggested accepting the hypothesis that the ADR has made settling disputes more effective in terms of cost and time due to alternative methods.
To fulfil the aim of the study, an extensive literature review was conducted, as well as gathering primary data from industry professionals. It has been found that ADR is an effective and efficient way of resolving disputes, given that the construction industry is highly sensitive to time and cost. Multiple parties are involved in the project at different stages and levels, making the parties' work interdependent without a slack or grace period, except in exceptional cases. The interdependence of parties makes the contracts complex, giving rise to conflict and disputes.
The literature evidenced that traditional resolution methods are ineffective in cost, time, and preserving business reputation. However, litigation is still utilised if costs start to soar and get out of control, as supported by interviewee P1(377-380). Yet, industry professionals prefer possible ADR methods. Most frequently, negotiations are used as per the survey data, but, in contrast, most participants have also preferred to use all resolution methods. Meanwhile, the selection and influence of the ADR method depend on factors other than time and cost, such as confidentiality and relations between the parties. Meanwhile, the survey data shows that EOT is the number 1 cause supporting the authors' findings.
It is concluded that the emergence of ADR has led to various benefits for everyone involved. Therefore, professionals prefer to utilize ADR rather than litigation; conflicts and disputes are unavoidable due to a highly versatile industry with many changes and frequent variations. However, the lack of understanding by all parties to contract obligations does not aid matters, leading to non-compliance and disputes. Therefore, in times of frequent disputes, court proceedings are not feasible. Hence, the use of ADR is more favoured to resolve disputes as the adjudication process is favoured in the UK construction industry, which is supported in the literature (Gaitskell, 2005).
Furthermore, ADR is more effective and efficient where solicitors, arbitrators and third parties are involved, making the process quicker and easier to resolve. Meanwhile, before legal proceedings, the courts require parties to go through mediation and negotiations before pre-trials. Therefore, courts also recognise ADR as an effective and systematic solution. Since a lack of understanding causes most disputes, ADR is the best solution to keep relations intact before a solicitor and arbitrator’s involvement. Consequently, ADR is said to be the most preferable method of resolution.
Recommendations
It is recommended for industry professionals to use ADR to resolve disputes and initially utilize negotiations because a common cause of disputes is a lack of understanding between parties, where one does not understand the position of the other and vice versa. In this situation, the use of negotiations is most feasible through which parties can resolve the disputes via one-on-one discussion and mutual understanding. In contrast, if the disputes are being resolved through litigation, then it becomes inefficient based on three facts: (1) it is an expensive process, (2) it is a time-consuming process, and (3) it damages business relations. These factors are highly important for the construction industry; hence, if a dispute escalates to litigation, then this normally results in each party facing inevitable consequences, willingly or unwillingly. Therefore, parties must refer to the use of ADR for resolution.
Further scope for the study regarding the most common causes of a dispute is recommended. The literature and primary data results have identified the same recurring causes for many years, indicating a potential link between these disputes. Lastly, further research is suggested by designing a survey questionnaire appropriately by including more open-ended options and the inclusion of further interviews with respondents. This will enable us to achieve better and improved results.
References
Alaloul, W., Tayeh, B., & Hasaniyah, M. W. (2019). A comprehensive review of dispute prevention and resolution in construction projects. MATEC Web of Conferences, Vol.270.
Alazemi, M., & Mohiuddin, A. (2019). Conflict Management of Construction Projects – A Research. International Journal of Engineering and Advanced Technology, 3809.
Alnaas, K. A., Khalil, A. H., & Nassar, G. E. (2014). Guideline for preparing comprehensive extension of time (EoT) claim. HBRC Journal, 308-316.
Anand, K. V. (2017). The most common causes for the construction disputes.
APM. (2019). Negotiation. Retrieved from Association for Project Management: https://www.apm.org.uk/body-of-knowledge/people/interpersonal-skills/negotiation/
Arcadis. (2019). Global Construction Disputes Report. Arcadis.
Aryal, S., & Dahal, R. K. (2018). A Review of Causes and Effects of Dispute in the Construction Projects of Nepal. Journal of Steel Structure & Construction, 144.
Bailey, J. (2014). In Construction Law (p. 1421). London: Routledge Taylor & Francis Group.
Barrett, J. T., & Barrett, J. (2004). In A History of Alternate Dispute Resolution. San Francisco: Jossey-Bass A Wiley Imprint.
Bell, A. (2019). Global Construction Disputes Report. Arcadis.
Bennett, S. C. (2018). Construction Mediation: Best Practices for Success. The Practical Real Estate Lawyer; Philadelphia, 3-17.
Brace, I. (2018). How to Plan, Structure and Write Survey Material for Effective Market Research. In I. Brace, Questionnaire Design (pp. 59-60). Kogan Page Limited.
Braun, V. C. (2014). How to use thematic analysis with interview data (process research).
Byrne, J. (2016). The pros and cons of various methods of dispute resolution.
Cakmak, E., & Cakmak, P. I. (2014, January 22). ScienceDirect. An analysis of causes of disputes in the construction industry using analytical network process, pp. 183-187.
Carolan, E. (2017, September 12). Method of Valuing Variations Under Construction Contracts. pp. 1-4.
Contract Dispute Resolution Ltd. (n.d.). Final Accounts in Construction. Retrieved from cdr: http://www.contract-dispute.com/further-reading/final-accounts-in-construction/
Cook, N. (2016). Different Methods Of Dispute Resolution In Construction Disputes. Different Methods Of Dispute Resolution In Construction Disputes.
Davies, E., Fenn, P., & O'Shea, M. (1998). In Dispute Resolution and Conflict Management in Construction: An International Review (p. 103). Taylor & Francis.
Dispute Prevention and Resolution Services. (2017). Dispute Resolution Reference Guide. Canada: Department of Justice.
Eggleston, B. (2009). Liquidated damages and Extension of Time in Construction Contracts. Chichester: Wiley-Blackwell.
Eilenberg, I. M. (2003). Dispute resolution in construction management. Sydney: University of New South Wales Press Ltd.
Ekhator, J. O. (2016). Investigating causes of disputes in building construction projects in Nigeria. International Journal of Science, Environment ISSN 2278-3687 (O) and Technology, 3516-3527.
Fellows, R., & Liu, A. (2015). In R. F. Fellows, & A. M. Liu, Research Methods for Construction (p. 157). Chichester: John Wiley & Sons, Incorporated.
Fenn, P., Lowe, D., & Speck, C. (1997, October 21). Construction Management and Economics. Conflict and dispute in construction, pp. 513-514.
Gaitskell, R. (2005). Adjudication - Its effect on other forms of dispute resolution (the UK experience). Australian Construction Law Newsletter.
Gaitskell, R. (2007). International statutory adjudication: its development and impact. Construction Management and Economics, 777-784.
Garner, J. (2015, December). Final account procedures. Retrieved from RICS: https://www.rics.org/globalassets/rics-website/media/upholding-professional-standards/sector-standards/construction/black-book/final-account-procedures-1st-edition-rics.pdf
Gould, N. (2010). RICS Legal Issues in Construction 2010 - Mediation in construction disputes. 21-28.
GOV.UK. (2015, June 23). Alternative dispute resolution for consumers. Retrieved from Department For Business Innovation & Skills: https://www.gov.uk/government/publications/alternative-dispute-resolution-for-consumers/alternative-dispute-resolution-for-consumers
Gregory-Stevens, J., Frame, I., & Henjewele, C. (2016). Mediation in construction disputes in England. International Journal of Law in the Built Environment, 134.
Harmon, K. M. (2003). Conflicts between Owner and Contractors: Proposed Intervention Process. Journal of Management in Engineering, 121-124.
Hasheminasab, H. S., Mortaheb, M. M., & Fard Fini, A. A. (2014). Causes of Common and Frequent Claims in Iran's Oil, Gas and Petrochemical Projects. KSCE Journal of Civil Engineering, 1270-1278.
Iyer, K. C., Chaphalkar, B. N., & Patil, S. K. (2018). Intrinsic Factors Influencing Decision making of Arbitrators in Dispute Resolution of variation Claims. Journal of The Institution of Engineers (India): Series A, 287-293.
Jaffar, N., Tharim, A. H., & Shuib, N. M. (2011). Factors of Conflict in Construction Industry: A Literature Review. The 2nd International Building Control Conference 2011, 193-202.
Justice GOV UK. (2020, April 25). PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOLS. Retrieved from Ministry of Justice: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct#18.1
Keane, J. P., & Caletka, A. F. (2015). In Delay Analysis in Construction Contracts (p. 120). Chichester: John Wiley & Sons, Incorporated.
Kennedy, P., Milligan, J., Cattanach, L., & McCluskey, E. (2010). The development of Statutory Adjudication in the UK and its relationship with construction workload.
Kent State University. (2020, April 9). SPSS TUTORIALS: CHI-SQUARE TEST OF INDEPENDENCE. Retrieved from Kent State University: https://libguides.library.kent.edu/SPSS/ChiSquare
Khekale, C., & Futane, N. (2015, May). International Journal of Science and Research (IJSR). Management of Claims and Disputes in Construction Industry, pp. 848-854.
Kitt, G. (2015). Failure to understand contractual obligations is losing the industry millions. Association for Consultancy and Engineering.
Klee, L. (2018). In International Construction Contract Law (p. 299). Chichester: John Wiley & Sons.
Kumaraswamy, M., & Yogeswaran, K. (1998). Significant sources of construction claims. International Construction Law Review, 144-160.
Latham, M. (1994). In S. M. Latham, Constructing the team (p. 87). HMSO.
Laycock, E., Howarth, T., & Watson, P. (2016). The Journey to Dissertation Success: For Construction, Property, and Architecture Students. In T. H. Elizabeth Laycock, The Journey to Dissertation Success (p. 90). Oxon: Routledge.
Lee, C. K., WingYiu, T., & Cheung, S. O. (2016). Selection and use of Alternative Dispute Resolution (ADR) in construction projects — Past and future research.
Linnett, C. M., De Moraes, C., Lowsley, S., & Smith, M. (2015). Extensions of time RICS guidance note. London: Royal Institution of Chartered Surveyors (RICS).
Malleson, A. (2018). National Construction Contracts and Law Survey 2018. NBS.
Mason, J. (2016). Construction Law: From Beginner to Practitioner. In Construction Law (p. 284). Oxon: Routledge.
McCall, B. (2017, November 9). The Irish Times. In construction, time is money.
Naoum, S. (2013). In Dissertation Research & Writing for Construction Students (p. 49). Oxon: Routledge.
Netscher, P. (2015, April 10). How to Avoid Disputes in the Construction Industry.
Opata, C. N., Owuss, E. E., Oduro-Apeatu, K., & Tettey-Wayo, J. N. (2015). An Exploratory Study of Professional Conflicts and Disputes within the Construction Industry. International Journal of Managerial Studies and Research, 59-61.
Perrin, H. (2014). Alternative Dispute Resolution (ADR): An Overview of Some Common Mechanisms, and their Strengths and Weaknesses in Context. Plymouth Law and Criminal Justice Review, 72.
Pickavance, J. (2016). A Practical Guide to Construction Adjudication. Chichester: John Wiley & Sons, Incorporated.
Raj, N. (2009). Quick Guide To Construction Claims. Warsaw: Prime Consulting - Construction Claims and Contracts Consultants.
Rosenburg, K., Barry, D., Bayfield, R., Ennis, C., Kirkwood, K., Ramey, M., & Winter, J. (2017). In D. B. Kim Rosenburg, Society of Construction Law delay and disruption protocol (p. 64). Leicestershire: Society of Construction Law UK.
Sakal, M. W. (2004). Constructing Projects in a Dynamic Environment: A Focus on Relational Contracting. Master of Engineering Report University of California Berkeley.
Sakate, P., & Dhawale, A. W. (2017). Analysis of claims and disputes in the construction industry. International journal of engineering sciences & research technology, 532.
San Cristóba, J. R., Carral, L., Diaz, E., Fraguela, J. A., & Iglesias, G. (2018). Complexity and Project Management: Challenges, Opportunities, and Future Research. 4.
Sanchez, V. A. (1996). The Ohio State Journal on Dispute Resolution. Towards a History of ADR: The Dispute Processing Continuum in Anglo-Saxon England and Today, 2.
Santiago, N. (2019). Negotiation in Construction Industry Disputes: UAE Situation Dissertation.
Sebastian, R. J., & Davison, B. (2011). The root causes of contract administration problems. Journal of Public Procurement, 171-189.
She, L.-Y. (2010). Factors which impact the selection of Dispute Resolution methods for commercial construction in the Melbourne industry: Comparison of the Dispute Review Board with other Alternative Dispute Resolution methods. Melbourne: RMIT University, Australia.
Sinha, M., & Wayal, A. S. (2013). Dispute Causation In Construction Projects. IOSR Journal of Mechanical & Civil Engineering, 54-58.
Sutrisna, M., Proverbs, D., Potts, K., & Buckley, K. (2004). A knowledge-based system for valuing variations in civil engineering works with a user-centred approach. International Journal of IT in Architecture, Engineering and Construction, 285.
The Construction Index. (2019, June 26). Are we getting on better? Construction disputes in decline. Retrieved from The Construction index: https://www.theconstructionindex.co.uk/news/view/are-we-getting-on-better-construction-disputes-in-decline
Thwaites, S. (2016, August 4). A Guide: Adjudication – back to basics. Retrieved from Wright Hassall: https://www.wrighthassall.co.uk/knowledge/legal-guides/2016/08/04/guide-adjudication-back-basics/
Torraco, R. (2016). Literature Reviews: Using the Past and Present to Explore the Future. Sage Journals, 405.
Trushell, I., Clark, B., & Agapiou, A. (2016). Construction mediation in Scotland. International Journal of Law in the Built Environment, 103.
Vos, G. (2019). Law Society Civil Litigation Autumn Conference. 6.
Wood, W., Allen, T., Andrews, N., Ross, G., Lumb, & Lawson, S. (2017). ADR and Civil Justice. CJC ADR Working Group.
Yates, J. K. (2011). The Art of Negotiation in Construction Contract Disputes. Journal of legal affairs and dispute resolution in engineering and construction, 94.
Appendices
Appendices play a supportive role by housing extra details, data, or materials that enhance the overall content of a document, offering readers a more comprehensive understanding.
Appendix 1: Ethics, Health and Safety
Consideration has been taken in terms of ethics in research by fully understanding and applying the basics. This is important as the thesis involves interaction with businesses and members of the general public who act as participants/respondents.
The author has carried themselves professionally throughout the whole of the thesis and has ensured to carry out the following:
- Quality and integrity
- Conformed consent
- Confidentiality and anonymity
- Participants to participate voluntarily
- Avoid harm to the participants
- Independent research
The author will ensure whether any harm could occur as part of the research and incorporate mechanisms to remove this potential harm, all whilst conforming with the appropriate ethical standards (Laycock, Howarth, & Watson, 2016).
Non-Malfeasance and Beneficence
The nature of the research posed minimal risk to the participants participating in the thesis. Any risks identified will be considered and reduced to the lowest levels achievable and, where still present, reviewed by the supervisor for consideration (Laycock, Howarth, & Watson, 2016).
Integrity
Research is to be carried out with integrity in mind, and an audit trail is to be created and made readily accessible to the dissertation supervisor upon their request (Laycock, Howarth, & Watson, 2016).
Informed Consent
The participants taking part in the research will be informed of the method and reason of the research, as well as the potential outcomes, to give them an idea of how and why their data is being used; a duplication will be included in Appendix 1. This will be provided to the participants in good time with an opportunity to raise concerns.
Any participants who do not provide data anonymously can request the removal of some or all of their data and their names to be redacted up to 3 weeks before the submission date of the research (Laycock, Howarth, & Watson, 2016).
Interviews
- Interviewees will not be aware of the other participants.
- There will be a cause for confidentiality where sensitive information is discussed, and the interviews will remain unanimous.
- Interviewees to be carried via telephone
- The wishes of the interviewee will use any recorded data. If the research is to be published, permission must be given.
Confidentiality and Anonymity
All data collected will conform to the EU General Data Protection Regulations (GDPR). All data is strictly confidential and treated with measures such as Qualtrics through the university server for any transcripts and questionnaires to ensure it stays secure (Laycock, Howarth, & Watson, 2016).
Impartiality
Any conflict of interest is to be declared and dealt with(Laycock, Howarth, & Watson, 2016).
Data Protection
All participants' raw data will be kept until marking has been completed; during this time, the data will be deleted from the university servers. Some data in the research may be kept indefinitely, and the ethics procedures of Sheffield Hallam cover consent for this. A link for this is included in the consent form within Appendix 1.
Sensitive data collected will be in the form of the participant's name, the company for whom they work and the position they hold, all of which will be stored separately from the collected research data securely and only accessible to the supervisor upon their request (Laycock, Howarth, & Watson, 2016).
Presenting Data
Interviews, such as interviewee P1, will be listed anonymously, and questionnaires will be grouped into relevant data with no direct links to participants (Laycock, Howarth, & Watson, 2016).
Health and Safety
The author will ensure their actions do not compromise their health and safety and that of others. The author will not undertake any activity that puts them or others at reasonable risk. Due to the circumstances, data will be gathered at the researcher’s residence, posing no risk to the author or others; therefore, no risk assessment was necessary in this particular instance.
Research Ethics Checklist
General Details
Name of student | ||
email address | ||
Course qualification (student) | ||
Name of supervisor | ||
email address | ||
Title of proposed research | An Insight into Alternative Dispute Resolution (ADR) and how this is executed to solve common Construction Disputes | |
A brief outline of the research to include rationale & aims(250-500 words). | Alternative dispute resolution (ADR) allows ways in which construction disputes can be handled compared to other traditional methods, such as litigation. By utilising ADR, disputes can be resolved through mediation and/or arbitration; however, other disputes may be resolved by more formal litigation. Disputes are common in any workplace, but they are more so in construction due to the diverse nature of the industry and the variation of individuals working for different corporations. It is only a matter of time before some form of dispute arises. ADR techniques have gained popularity in managing conflicts and disputes (Lee, WingYiu, & Cheung, 2016). This is because the people involved became displeased with the traditional methods of solving disputes, which were incorporated into the standard contract form. Fenn, Lowe & Speck (1997) stated conflicts and disputes are two distinct notations. A conflict is where the interests of two parties are incompatible; however, this can be handled with the possibility of preventing a dispute. Disputes are different as they’re one of the main reasons for a project not reaching completion, and these require resolution using either mediation, arbitration, negotiation, etc. (Cakmak & Cakmak, 2014). The main causes for construction disputes are related to money and time, e.g. not being paid and delays due to inclement weather, etc.; this can then result in delays and dependant on who’s responsible, i.e. the employer, then the contractor can claim for an extension of time (EOT) and/or loss and expense claim. Aims: · To research ADR and gather insight into the reasoning for its use. · Investigate and Identify the main methods of ADR Objectives: · Brief insight into the history of ADR to gain an understanding of its origins and how it has changed over the years · Establish the main reasons for dispute and explore the causes within the construction industry · Formulate a comparison between ADR and other forms of dispute resolution · Identify whether ADR has had a positive/negative effect on the construction industry since its incorporation of solving disputes | |
Where data is collected from individuals, outline the nature of data, details of anonymization, storage and disposal procedures if required (250-500 words). | Data collected from interviewees was recorded on the university Dictaphone and then transcribed onto a Word document for transcriptional whilst being secured by the university’s servers. Prior consent was obtained before the interviews were conducted, and consent forms were sent to the interviewees. Interviewees remained anonymous throughout the entire process, including within the thesis. About the questionnaires, data obtained from the participants were securely stored on Qualtrics. Participant information sheets and consent forms were attached to the survey, and all participants remained anonymous throughout the entire process, including within the thesis. All participants' raw data will be kept until marking has been completed; during this time, the data will be deleted from the university servers. Some data in the research may be kept indefinitely, and the ethics procedures of Sheffield Hallam cover consent for this. A link for this is included in the information sheet within Appendix 1. Sensitive data collected will be in the form of the participant's name, the company for whom they work and their position, all of which will be stored separately from the collected research data securely and only accessible to the supervisor upon their request. All data collected will conform to the EU General Data Protection Regulations (GDPR). | |
4. Research with ProductsandArtefacts
Please ensure the following are included with this form if applicable, tick box to indicate:
| Yes | No | N/A |
Research proposal, if prepared previously | |||
Any recruitment materials (e.g. posters, letters, etc.) | |||
Participant information sheet | |||
Participant consent form | |||
Details of measures to be used (e.g. questionnaires, etc.) | |||
Outline interview schedule/focus group schedule. | |||
Debriefing materials | |||
Health and Safety Project Safety Plan for Procedures |
Participant Information Sheet
Appendix 1 - Interviewee Information Sheet
Participant Information Sheet
Dear XXXX,
Thank you for agreeing to participate in my undergraduate research thesis entitled:
An Insight into Alternative Dispute Resolution (ADR) and how this is executed to solve common Construction Disputes.
You have been approached because your experience and expert knowledge in this area will prove invaluable in moving my research forward.
The interview will last approximately 30 minutes and will consist of a mixture of questions to gauge your opinions on the application of ‘Alternative Dispute Resolution’ in the Construction sector and its implications, if any, on cost and time. You are free to answer these questions as broadly or concisely as you please and are not obliged to answer any questions should you wish. To take part in the research, I ask that you complete a Participant Consent Form, and if at any time you do not wish to participate in the research project, you are free to withdraw without any consequence.
Our conversation will be recorded using a voice recorder and stored on a secure server at my university. A transcript of the conversation will also be produced. Only my supervisor, Nicola Power MEng, and I will have access to this data until its publication. Upon graduation, any copies of this data will be deleted/destroyed in line with GDPR and the Data Protection Act 2018. See the link for your full rights
Interview recordings will be fully anonymised, and no individuals, companies or projects will be named publicly. At your request, a full transcript of the interview can be forwarded to you by email. You reserve the right to withdraw your contribution to the study for 14 days after the interview. If you have any further questions, please do not hesitate to contact me at the email address below.
Participant Consent Form
Appendix 1 - Interviewee Consent Form
Participant Consent Form
Please circle: RESEARCHER COPY / PARTICIPANT COPY
TITLE OF STUDY:
An Insight into Alternative Dispute Resolution (ADR) and how this is executed to solve common Construction Disputes.
|
Please answer the following questions by circling your responses
Have you read and understood the information sheet about this study? | YES | NO |
Has the information sheet included details of the data controller and how data will be used, stored, and disposed of? | YES | NO |
Have you been able to ask questions about this study? | YES | NO |
Do you understand that you can withdraw from this study, and how can you do this? | YES | NO |
Do you understand that you are free to withdraw from this study without giving a reason for your withdrawal? | YES | NO |
Have you received enough information about this study? | YES | NO |
Do you understand that your responses will be anonymised before they are analysed (unless you have given written permission to be identified)? | YES | NO |
Do you agree to take part in this study? | YES | NO |
Your signature will certify that you have voluntarily decided to participate in this research study, having read and understood the information in the sheet for participants. It will also certify that you have had adequate opportunity to discuss the study with an investigator and that all questions have been answered to your satisfaction
Signature of participant:.....................................................Date:............................
Name (block letters):..........................................................
Signature of investigator:....................................................Date:............................
Name (block letters):..........................................................
Please keep a copy of the consent form and the information sheet together. (Name, address, contact number of investigator)
Interview Questions
Semi-structured Interview Questions
Background Questions:
- How long have you been working in the construction industry?
- What is your current job title, and could you expand on your role?
- Do you have any specialist knowledge in alternative dispute resolution?
- If so, can you expand on this? (for your answer above)
- What type of company do you work for?
- How many people are currently employed at the company?
Main Questions:
- In what capacity does your job role cover the instances of applying ADR to practice
- From my initial research, an EOT claim has been and still is one of the most common causes of dispute. Can you please explain why you think this is?
- What factors do you believe contribute to disputes arising?
- What would you consider the number one cause of dispute causing the implementation of ADR in your organisation?
- Has the construction industry become more reliant on ADR since its prominence in the 1990s?
- Why do you think this? (for your answer above)
- Do you think ADR has positively or negatively impacted how disputes are resolved?
- Can you expand and explain the positives/negatives associated with this?
- Do you think that ADR has had a positive or negative effect on cost and time?
- Why do you think this? (for your answer above)
- What are your views on ADR, good or bad, and this being incorporated into the standard contract form?
- In your opinion, what is your most favoured method of dispute resolution compared to others, and why?
- In your most recent ADR claim, which route was taken, and how long did it take to render an award?
- Has a dispute you’ve ever been involved in ever gone to court?
- If yes, how long did the entire process take to resolve?
Questionnaire Questions
An Insight into ADR and how this is executed to solve common Construction disputes
Information Sheet
Dear Sir / Madam,
Thank you for agreeing to participate in my undergraduate research thesis entitled:
An Insight into Alternative Dispute Resolution (ADR) and how this is executed to solve common Construction Disputes.
Please answer the questions as honestly as possible; the questionnaire will be stored on a secure server at my university. Only my supervisor, Nicola Power MEng, and I will have access to this data until its publication. There is no obligation to participate in this questionnaire if you do not wish. Upon graduation, any copies of this data will be deleted/destroyed in line with GDPR and the Data Protection Act 2018. See the link for your full rights.
Questionnaires will be fully anonymised, and no individuals, companies or projects will be named publicly. At your request, a full copy of the questionnaire can be forwarded to you by email. You reserve the right to withdraw your contribution to the study for 14 days after completing the questionnaire. If you have any further questions, please do not hesitate to contact me at the email address below. Alternatively, you may contact my supervisor at any time.
Yours sincerely,
Q1 Approximately how long have you or your organisation used ADR services?
- Less than 1 year
- 1-2 years
- 3-5 years
- More than 5 years
Q2 Thinking about the contracts you were involved in within the last 12 months, how many of these went into dispute?
- One
- Two
- Three
- Four
- Five or more
- Other - Please specify: ________________________________________________
Q3 Who were these disputes between?
- Client and main contractor
- Main contractor and subcontractor
- Consultant and contractor
- Subcontractor and subcontractor
- Other - Please specify: ________________________________________________
Q4 Of these claims, what method of ADR was utilised to resolve the dispute?
- Arbitration
- Adjudication
- Mediation
- Negotiation
- Other - Please specify: ________________________________________________
Q5: how long did the process take months in your most recent dispute?
- One or less
- One to five
- Five to ten
- Ten to fifteen
- Fifteen to twenty
- Other - Please specify: ________________________________________________
Q6 What were the main issues in dispute during the past 12 months?
- EOT
- Loss and expense
- Final account valuation
- Valuation of variations
- Failing to understand & comply with contract obligations
- Errors and/or omissions in the contract document
- Other - Please specify: ________________________________________________
Q7 What is the most common method of ADR you have used?
- Arbitration
- Adjudication
- Mediation
- Negotiation
- Other - Please specify: ________________________________________________
Q8 What factors would influence your decision to choose a means of settling disputes?
- Time
- Cost
- Other - Please specify: ________________________________________________
Q9 Do you think there are fewer or more advantages over disadvantages of using ADR services?
- More
- Less
- Equal
Q10 What would you consider the most effective dispute resolution method?
- Arbitration
- Adjudication
- Mediation
- Negotiation
- Other - Please specify: ________________________________________________
Q11 Do you think ADR has positively or negatively impacted time?
- Extremely positive
- Moderately positive
- Slightly positive
- Neither positive nor negative
- Slightly negative
- Moderately negative
- Extremely negative
Q12 Do you think ADR has positively or negatively impacted cost?
- Extremely positive
- Moderately positive
- Slightly positive
- Neither positive nor negative
- Slightly negative
- Moderately negative
- Extremely negative
Q13 EOT is the number one cause of claims leading to alternative dispute resolution. Do you;
- Strongly agree
- Agree
- Somewhat agree
- Neither agree nor disagree
- Somewhat disagree
- Disagree
- Strongly disagree
Q14 Do you think the ever-increasing complexity of construction contracts has led to more complications of the contracts, leading to disputes?
- Definitely yes
- Probably yes
- It might or might not
- Probably not
- Definitely no
Q15 Do you think the complexity of the contractual obligations directly links to disputes arising, leading to EOT claims?
- Definitely yes
- Probably yes
- Might or might no
- Probably not
- Not
Q16 Do you think Litigation is a better or worse way of dealing with disputes than ADR?
- Much better
- Moderately better
- Slightly better
- About the same
- Slightly worse
- Moderately worse
- Much worse
Consent Form
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- No
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- Yes
- No
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- No
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- Yes
- No
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- Yes
- No
Do you understand that your responses will be anonymised before they are analysed (unless you have given written permission to be identified)?
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- No
Personal details
- Name ________________________________________________
- Role ________________________________________________
- Company name ________________________________________________
By ticking I consent, you will certify that you have voluntarily decided to participate in this research study, having read and understood the information in the sheet for participants. It will also certify that you have had adequate opportunity to discuss the study with an investigator and that all questions have been answered satisfactorily.
- I consent
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Data Collection Health and Safety Risk Assessment for the Researcher
- Will the proposed data collection take place on campus?
Yes (Please answer questions 4, 6 and 7)
No (Please complete all questions)
- Where will the data collection take place?
(Tick as many as apply if data collection will take place in multiple venues)
| Location | Please specify |
Researcher's Residence |
| |
Participant's Residence |
| |
Education Establishment |
| |
Other, e.g. business/voluntary organisations, public venue |
| |
Outside UK |
|
- How will you travel to and from the data collection venue?
On foot By car Public Transport
Other (Please specify) No travel required
Please outline how you will ensure your safety when travelling to and from the data collection venue.
No travel required
- How will you ensure your safety whilst at the research venue?
Research carried out and home residence
- If you are carrying out research off-campus, you must ensure that each time you go out to collect data, you ensure that someone you trust knows where you are going (without breaching the confidentiality of your participants), how you are getting there (preferably including your travel route), when you expect to get back, and what to do should you not return at the specified time. Please outline here the procedure you propose using to do this.
I will make a trusted individual aware of what time and where I will finish. Once completed, I will inform the individual that I am ok.
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None that I am aware of
Yes (Please outline below, including steps taken to minimise risk)
Does this research project require a health and safety risk analysis for the procedures?
Yes
Appendix 2: Interview Questions
N.b The colour codes were used on the transcripts in appendices 3-4
Research objective 2
Most Common causes of disputes between clients and contractors
Research objective 3
Preference of ADR to traditional models
Research objective 4
Effectiveness of alternative dispute resolution (ADR) in terms of cost and time
Theme | Colour highlighted in text |
Research objective 2 | |
EOT | |
Final Account Variation | |
Valuation of Variation | |
Non-compliance to Contract | |
Research objective 3 | |
Preference | |
Negotiations | |
Mediations | |
Adjudication | |
Arbitration | |
Research objective 4 | |
Positivity | |
Negativity | |
Reliance |
Appendix 3: Thematic Analysis Transcription: Interviewee P1
Interviewee P1: That's what we do, so that's what we do. Um, we work in expert roles in quantum and delay. So, I've, I've worked as a, I've worked as a quantum expert, haven't yet worked just as a delay expert, but, um, that's my main field of work actually in delay analysis.
CN: Brilliant. Um, so do you have any specialist knowledge in ADR? Would you say that's the quantum side? Is the specialist knowledge that you possess for that? [inaudible]
Interviewee P1: um, well, I've worked, I guess, in ADR for the last, um, 12 years. So yeah. Um, yeah, I would say I've got good specialist knowledge in that. Um, I worked, I'm sure I don't want to, I suppose I don't want to, I'm pre-empting your next questions, but um, yeah, so worked in almost every form of ADR.
CN: Brilliant. Um, um, roughly how many people are currently employed at the company you work for? Just roughly.
Interviewee P1: We have affiliate companies, which means they're not our company, but we work as if we were the same company. But in the actual UK company, that's a relatively small amount, so about seven or eight of us.
CN: Right. Okay. Brilliant. Um, right. That leads me to some of the main questions. Again, some of these we may not have time to cover what we'll go for as many as we possibly can. Um, so in what capacity does your job role cover the instance of applying ADR to practice?
Interviewee P1:Um, so basically what happens is, um, a contractor and a client and employer, um, will obviously get into difficulties and then follow that contractual procedure usually to whichever, um, method of ADR is available within that.
CN: Yeah.
Interviewee P1: And then they will usually employ legal services, and the legal services will employ us as technical experts. Well, delay experts and quantum experts. If the root is arbitration, for instance, we would be brought in at the stage where an expert report was needed for that arbitration.
CN: Yup. Okay. So, there is a little difference between quantum and delay, then, is that right? Am I right in saying that?
Interviewee P1: Yes, so quantum has numbers; quantum is costs. You'll be aware that when, um, when projects overrun, um, they overrun in terms of time and cost. So, quantum is getting the cost back for the client. Um, time is trying to, um, either, uh, if you're working for the contractor to, um, stop them being levied, liquidated damages if you're working for the client to, um, to prove that the contractor that should pay liquidated damages.
CN: Right. Okay. That sort of, then, probably leads me to my next question. I don't know if it's related, but from the research I've done on the lit review, it seems that one of the main claims is an extension of time. Uh, it seems to be one of the most common causes. Can you explain why you think that might be?
Interviewee P1:Um, yes, I think so. First, contractual provisions for time extension are generally not very good. There are several forms of contracts, but the NEC contracts are probably best because they're prescribed that you have to do it at the time. So, you have to give any EOT at the time of the event, and you can't go back on that. So, that's probably the best way. Um, but generally, the contracts are not adhered to either. So, the client, the contractor, or both do not adhere to the contract. And, um, and, and the other, the other issue I think, um, which is probably not a popular opinion. Still, I think the contract has, uh, trying to keep the clients so happy all of the time that they, that, um, they're not probably contractual enough to claim the EOTs properly, and then only when they get into a dire situation at the end of the contract do they think, well, actually, you know what it is, we're not in this situation because of our faults. We need to try to claim this time back. And sometimes, it's too late, and sometimes they're time-barred. Sometimes, they can get the time back, but it's not as easy as it would have been. And, um, you have to go through forensic analysis as often as you're probably finding Casey. They must employ an ADR method instead of just the contractual mechanism.
CN: So, do you think then maybe cause some of my literature as well I've linked to not understanding contractual obligations linked to extensions of time? So, do you think possibly costs that don't, not everyone understands the full obligations that can lead to delays and then claims for extensions of time? Do you think that is related?
Interviewee P1:a hundred? 100%? Yeah. I mean, I've been into companies to, um, for free, to teach the folks how to prepare proper EOTs and how the contracts ask you to do that. And to be honest with you, even the senior commercial staff don't fully understand the contractual mechanisms.
CN: Right. Okay. Okay. That's, that's, that's quite good information. Yeah. Um, right. Okay. So, what would you consider your organisation's number one cause of dispute? That's basically what I'm trying to say: What's the one you probably come across the most often? Uh, what, what seems to create disputes?
Interviewee P1:Um, yeah, good question. Um,
CN: I bet it's tricky to answer because you probably go through quite a lot.
Interviewee P1: Yeah, yeah. I want to make sure I'm not answering; I'm answering your question and not the question that I want to answer that first of all that the main cause of, um, the main cause of ADR being needed, I think is, um, are time-related instances. Um, but how that occurs, um, or rather, um, what's most prominent in that probably is, um, well, there's lots of stuff not agreeing about, you know, having tons of change on the project. There are many variations, and I could not get that agreed upon then. Um, or that being rejected. Um, even though even though it could be, um, viable. Um, yeah, generally change. I think project change is probably the most important; it's probably why I would look to answer your question. Project change and then being unable to agree on the reason for that change.
CN: Brilliant. Yeah, I can understand that. It's quite a tricky, tricky question to answer, to be fair, cause there are many different variables to explain why it can occur, but no, that's brilliant. Um, so moving on, I've talked a little bit about the history of ADR to get an idea of how it came about. So, it seemed to become prominent in the 1990s, based on my research. Uh, do you reckon? Do you reckon in your experience with becoming more reliant on it since then? Uh, do you think we started to use it more and more instead of the traditional ways of, uh+, you know, solving issues like litigation, stuff like that?
Interviewee P1:Ah, yeah, I think so. Um, and I think the reason for that probably is that it was quite novel, quite new, obviously in the 90s and the late, in the late nineties. It was probably more about arbitration, but then the Housing Grants Act came in, and everyone tried to move towards adjudication because that was the cheaper and quicker way to do things. So, the balance most certainly changed in the UK. Casey, um, most ADR disputes were in the adjudication area. Um, the now yes, I think the construction industry is quite reliant on, um, ADR as opposed to Litigation, and the reason for that is because there is, there's usually something called a pre-action protocol, and the pre-action protocol usually means, um, it's not in all cases. Still, it usually means that it's looked upon quite unfavourably if you go straight to litigation against somebody and haven't tried to use a method such as mediation adjudication or arbitration to resolve it in the first instance.
CN: Right. Okay. Yeah. So that makes sense. Yeah. Uh, I suppose it's like you said; it's probably a more confidential way as well. I am trying to resolve it through ADR instead of going straight to the courts. And it's a quicker turnaround. Uh, I suppose it's, yeah,
Interviewee P1: Adjudication is arbitration, which is not particularly confidential at all. So arbitrations will come, will be published and will come out. If you're not meant, you know, you know, meant to, um, you can say, you can almost say what you like in adjudications, and nobody will ever find out about it.
CN: All right. Okay. I didn't know that. That's something new I've learned. I thought there were all sorts of confidential ways. I don't know. That's good to know.
Interviewee P1:Well, I don't think so. No, not arbitrations.
CN: So, in your opinion, then, do you think ADR has positively or negatively impacted how disputes are resolved? I think I'll know your answer, but I'll ask you anyway.
Interviewee P1: Yeah, the two difficulties that, um, I'm only 38, so I wasn't around before ADR. Um, and the second difficulty is I make a living out of ADR, so I do tend, I mean, trying to pull myself away from that though, I do tend to think that it is, that it has to be a positive thing and the most positive thing would be actually to have better contractual mechanisms for people to stick to those. But actually, is that ever going to happen? I don't think so. Um, so yeah, I think it is, uh, it is a positive way to do things. Um, and I, I think, I think that the difficulty is. I'm not sure whether this is part of your analysis, but the difficulty is, um, it's not difficult for me because I make more money when this happens. Still, the difficulty is that mechanisms brought in to maintain cash flow or resolve a dispute relatively quickly don't work. They don't exist anymore. I mean, now and again, you have an adjudication which costs about, say, it might cost about 35 grand and gets the job done. But I think it's more prominent now where adjudications cost closer to a hundred grand, and that's not really what they were brought in for.
CN: Right. Okay. So, that leads me to the next question as well. So, it is a similar sort of question about positives and negatives. So, do you think it's had a positive or a negative effect on cost and time? Um, and why'd you think, why do you think this,
Interviewee P1:um, in terms of the cost and time of a project,
CN: uh, in terms of, uh, so yeah, so relation in costs and time. So, does it save money in the long run compared to traditional methods? Uh, and is it also a quicker turnaround all around? Yeah, the project life cycle.
Interviewee P1: Yeah, the quickest thing is negotiation. But ADR is much quicker and cheaper than litigation if you can't negotiate.
CN: Right. Okay. So, in that aspect, it's probably more positive than negative. Do you think it has any negative effects in terms of cost and time?
Interviewee P1:Um, yes, it, it, it can, it can do the, the, the instance I would think of, um, you, you could never know this at the outset. That's the problem. But the difficulty can be that, um, you might go through the, your contract might say go straight to arbitration, for instance, and you go, you go to arbitration, and you spend four months on the arbitration and, and you know, 150, 200, 200 grand, um, and then the, and then you go to the litigation. So that's like a double down, you know, that's a double down on time, and it's a double down on cost. Um, so that's the difficulty. It can spiral a little bit. Um, the, the, the other side of, it's, it, you know, it can just settle pretty quickly, or actually in adjudication on arbitration can bring the two sides together to say, do we want to continue down this route? You know, can we not just thrash out a deal?
CN: Yeah. Yeah. Okay. So I mean, there are the positives, I would say, that outweigh the negatives. Still, I suppose, as you said, if ADR doesn't resolve it, it will go down the litigation route, making it longer than it would have initially been if it had just gone through litigation. But again, as you said, you don't know at the outset what will happen to you and what will happen to you. So
Interviewee P1: Very true. And the other there that they're there that positives and negatives. I can think of Casey are, um, the, I see a lot, I mean especially in larger clients, I see a lot of larger clients adjudicate and against each other and arbitrating against each other and then wiping that, wiping them out and moving on and working together on the next project, which is good. Even though it can get dirty, that tends to happen; I see much less. Mmm. I see much less, less litigating and preserving of relationships once you, once you push that litigation button, it's difficult to,
CN: to sort of maintain that relationship afterwards. Yeah, I suppose so yeah. I didn't think of it. That's quite a good point I could properly look at as well, that it maintains good relationships still, even though they are still disputing against one another, but there's still a chance to keep a good relationship and work through that. Yeah. It's a good point. Yeah. Um, so what would you say? What are your views on ADR? I mean, I'll probably, again, it's a difficult question as your work in that area, but good or bad. Uh, and what, and how would you feel about it? How would you feel that it is being incorporated into the standard contract form? Do you think overall it is a good decision? Do you think there could've been better ways to deal with stuff?
Interviewee: P1:No, I think, um, obviously, I think it's positive, and I certainly think the theory of its positive, even practicality isn't always positive. I do. I do strongly feel that contracts tend to now anyway, but I do strongly feel that contracts should prescribe, almost on a paint-by-numbers basis, how and how the parties should deal with disputes. I know that some contracts still say, um, we, we think you should adjudicate, and if you adjudicate, you should use the RICS or whatever. Um, but it is getting a bit more standard now in contracts to describe it a bit more than that. And the more prescriptive contracts could be in that respect, the better. When both sides realize they're in dispute, they don't; even though they might not know then, they want to be told what to do and how to move on. And, um, I think that's the job. That's the contract's job, but they need to improve.
CN: Yeah. I mean, it's a complex process in it, I suppose. As you said, they need somebody to tell them what to do and how to do that when disputes arise. I suppose so, yeah. I mean.
Interviewee P1:Well they end up paying, they end up paying lawyers for that, which is fine, but, um, if the contract were very prescriptive, they'd still pay lawyers, but, um, the, the lawyers would only be telling them what the contract shows, so it would probably be cheaper.
CN: Yeah, true. Yeah. Um, in your opinion, what would be your most favoured method of dispute resolution compared to others, and why would this be? If that makes sense, in terms of negotiation methods and mediation, what, in your opinion, probably from your experience, what, what do you, what would you say is the most favoured for yourself and why?
Interviewee P1: Well, I think, not for myself, but I think the best way to get around these issues is to get around these issues. It's an in-negotiation. Although that's not the case, I guess that's not a form of ADR, right? I don't think so. Um, but maybe it is; I'm not sure.
CN: Yeah. I think it comes under, and I believe it does come under ADR. Yeah. I believe it does. I've collected a little bit of data. Uh, and, with you saying that it's quite, it's quite, um, good that I've done that cause many people to favour that as well. Uh, negotiation seems to come up quite often.
Interviewee P1: Yeah, I would say that. I mean, it's just common sense actually that if you can, if you can get to the table and negotiate something and get to a figure or an EOT amount that, that both sides are maybe not happy with but willing to swallow that that's certainly the best way to maintain relationships. Um, maintain cash flow, uh, move on quickly from something. I generally think if you can't do that, um, it's a, it's a, it's a, it's a tough one. If you can't do that because I like adjudication, as you know, it's not, it's not, it's only enforceable until it gets appealed or challenged. Um, but if an adjudication does what it says on the tin and gets you out in 28 days with a decision, um, even if it's a bad decision against one of the parties possible because adjudications are a bit quick and dirty if I'm honest. Um, then generally, as I said, parties can wipe their mouths and move on and maintain some relationship because all they've done is put their case to a decision-maker. The decision maker is ultimately responsible for that award.
CN: Right. Okay. So, in negotiation you, you would, you would agree with is probably the most favoured way of way off, obviously dealing with claims just simply because it's, it's a quicker way and as you said, it gets, gets things moving on an a and then obviously maintains a good relationship as well. Okay.
Interviewee P1: And generally, you don't need experts, you know, we sometimes get involved in negotiations, but, generally, you don't need, you don't need external consultants to negotiate or, or you might very briefly, which, um, external consultants are expensive, so,
CN: yeah, yeah, yeah, exactly. The extra fees, and I suppose so negotiation-wise, are slightly off-topic. Who would, who would not, so would you need to be qualified in that area for negotiation, or could it be? I don't know how that sort of process roughly works.
Interviewee P1: Generally, it's really simple. Casey, generally, um, they might get some external advice on your strengths and weaknesses. Um, but to be honest with you, generally, one of the company's directors will meet with one of the directors of the other company and negotiate.
CN: All right. Okay. I didn't know that. That's pretty useful as well, then. So, all right. Okay. So, it can be done at a director level and then agreed on that way. All right. Okay. Yeah, that's probably why it's a lot favoured as well. Then I suppose if it can be, if it can be dealt that way, it's nice and easy. Yeah. Um, in your most recent dispute, which route was taken, and how long did it take to render an award? Were you able to discuss that?
Interviewee P1: I always have multiple disputes, so it's difficult; I can give you some examples.
CN: Yeah, Yeah, that would be good.
Interviewee P1: So my most extreme examples probably are, um, without probably will give the projects away, but I won't mention the names. One of them is a canal project in Central America. Um, I've been working on the arbitrations since 2015, so five years. The other extreme example was a nuclear power plant in Finland, and we worked on that dispute for about seven years. Yeah. So that's the one end of the spectrum. Um, the ones in Central America were a series of arbitrations; the one in Finland was a tribunal, so effectively an arbitration but a panel of judges. Um, so, but then on the UK on a UK level, I'm working on, uh, uh, probably my most recent example is a data centre in London. Um, that that is going, unfortunately, I think that's going to go litigation this year, but before that, there’s been a series of negotiations and, um, one adjudication. Um, so the adjudication did not take 28 days. It took, um, it took all the full extension. So, whatever that is now, 46 days or whatever it is. Um, so, but that was resolved at that time. Um,
CN: Oh, so did that, did that not go through to litigation then? Did it get resolved in the 40 days of adjudication? Is that right?
Interviewee P1: Yeah, that was a cost issue. That was a quantum issue, and it was just that he had to, so whatever the decision was that that was just paid, the money was paid. And that was adhered to, um, the delay issue has not been adjudicated yet. Um, it's just been, it's just been a series of negotiations, but, um, it's felt now that it's probably too far for that. So, um, the legal advice is to go to, uh, uh, to go to litigation.
CN: Right. Okay. So, you answered the last question in a way because I was going to ask if you've ever been involved in a dispute that's ever gone to court. So, when it goes to litigation, I'll expand on it slightly. So what, what would you say are the reasons for, for instance, in negotiations, doesn’t work and then adjudication doesn’t, so it goes to litigation? What's your opinion from your experience? What's the main reason why it doesn't work in them? Uh, ADR stages before. What's the main cause? Is it just, just complete disagreement or is, or are there other factors involved in that, if, if, if that makes sense to you?
Interviewee P1:Hmm. No, it does make sense; the short answer is, um, just complete, uh, unwillingness to accept the decision. Oh, it's a little bit deeper than that. Yeah. Um, I'll try to say this without swearing. I was about to swear there. A company can be in real trouble, Casey. And it's their last throw of the dice, and maybe I don't mean in terms of folding or anything like that. Um, what you, what you probably need to understand is that some of, some of a lot of people get sacked for things if the decision goes wrong, they went, um, you know, if it's, if it's their ship, if it's their ship that's sinking, um, then their job doesn't exist anymore. So, it's a, I think, I think that, um, if failure to negotiate certainly is like it because negotiation is a constant thing. It, it, it, when ADR happens, when, when other forms of come in, it doesn't, negotiation doesn't stop. It never stops. So the, the directors of the companies, always try and, or should be anyway, always trying to have sit-downs in the middle of adjudications in the middle of, um, arbitrations to try and, you know, um, nip it in the bud so they don't have to have a decision from it from a third party.
CN: Right. Okay. Okay. I didn't know that. That's good. That's a good point. So, there's always, there's always multiple ADR services going on, so it's not just one, one method, and that's it. There's negotiation still going on in the background while, whilst, yeah, okay. That's,
Interviewee P1: But it's only a negotiation, and another ADR method, it’s never; you can't negotiate. You can't arbitrate and adjudicate on the same issue simultaneously. But yeah, so no, that's constant. It's always constant negotiation, um, going on or there should be anyway, there is in my experience, um, the problem comes when, you know, you try that five, six, seven times and you get nowhere, and then people start to resent each other. And, um, you know, it gets to a point where the negotiations are just not working. The decision might be so bad for one of the parties that, um, you know, heads have to rule for that. Um, it means that the company loses a lot of money and has to find, you know, ways to deal with that. So essentially, um, let's say it's a, for ease of numbers, let's say it's a 10 million pound dispute, um, and, and each. Each side's trying for 5 million of that, um, if it gets to a point where a legal team says, look, this litigation will cost you 400,000, but if you don't litigate, you going lose 5 million. The problem is that the likelihood of them throwing another 400 thousand at it could be quite high because, um, you know, it's like their last shot.
CN: Yeah. Okay. Right. Okay. That's some food for thought as well as some, uh, some good advice on that. Um, in your experience, have you ever been involved with litigation, or do you know how long the process has taken? Uh, once it's gone to litigation?
Interviewee P1: Yeah, I've never, I've never, I've never testified in a litigation. I've certainly worked on, um, reports for litigation and, um, yes, probably like standard litigation in the UK, well, I say a standard, but like, you know, a few million pounds, 10 million pounds maybe, um, litigation in the UK. Um, I would say a minimum of 12 months.
CN: Right. Okay. So, a minimum of 12 months to divert a little bit. Would you say, um, the value of the dispute would influence the use of litigation over other methods? Would the value be like that? So that's okay. That makes sense as well. So, the higher the value, the more chance there is to go into litigation and be solved in the courts.
Interviewee P1: It's very expensive. You're not going to litigate. If the litigations are going to cost you 400 grand, you're not going to litigate on a 400 grand dispute because.
CN: It just wouldn't. Yeah, it wouldn't make sense.
Interviewee P1:No,
CN: That's brilliant. Um, I'll, uh, I'll stop recording now. One second.
Appendix 4: Thematic Analysis Transcription: Interviewee P2
CN: Hi, how are you doing?
Interviewee P2: Yeah, very good. Thank you.
CN: Good. Um, just before we continue the call, is it okay if I record you?
Interviewee P2: Yes, of course
CN: Is that okay? Yeah. Brilliant. Do you have the questions I sent a few weeks ago in front of you? Yeah. Brilliant. It's a semi-structured interview where I might deviate from the questions to get more data to analyze. Um, but the first couple of questions are to get a background of your job role. So, I'll. They should be quick questions, so I'll start with them if that's all right with you.
Interviewee P2:Yeah course
CN: How long have you been working in the construction industry roughly?
Interviewee P2: Um, since 96, so what's that? Uh, it's too long.
CN: Yeah. You could say that. Um,
Interviewee P2: Yeah, since 96, so what should I know? Shouldn’t I? I’ve been a quantity surveyor.
CN: Yeah. So, it's 20, 20 odd. Yeah, yeah, yeah. Around that area. Um, so what's your current job role? Uh, and could you expand on what that entails?
Interviewee P2: Yeah, so I mean, I'm a chartered quantity surveyor, so that's my role, my title if you like. My job is split in a few different directions, so I do some of what I call contract solutions. Um, so basically, contractual advice on live projects. Um, generally with issues or problems or matters that need to be resolved but can be done, so usually while a job carries on and then, and then my other work is all dispute resolution, either I’m pointed as an expert witness or a mediator, or a party rep in adjudication.
CN: Right. Okay. Brilliant. Um, so do you have any specialist knowledge in ADR? I suppose you've sort of already answered that in a certain way.
Interviewee P2: Yeah, I guess the short answer to that is yeah. Um, uh, you know, yes. Experience, but yeah, and then qualifications led to the experience and the role I’ve got. So yes, I have.
CN:
Brilliant. And what type of company do you work for, or do you just sort of work on a freelance basis?
Interviewee P2: I'm an employee at a small practice of specialist surveyors. Yep. So that practice has me a chartered surveyor who does much contract administration and likes project work but very much for one client. He does some expert witness work when he can or gets appointed. And then we've got a barrister in there that does a lot of adjudication and contract work. And then my principal is mainly an expert witness and an adjudicator on the RICS panel, so that’s his main section of work. And then a full-time adjudicator on the RICS panel.
CN: Brilliant. So, in what capacity does your role cover applying ADR to practice? So, I'm guessing if, if like you've just said that there's a lot of specialists, surveyors, I'm guessing it's pretty much 99% of your work, I'm guessing. Is that right?
Interviewee P2: Yeah, it's all around contract issues. As a chartered QS, I don't do any chartered Qs'ing, if you know what I mean. I only think QS'ing works when I do an expert witness report like the one I finished yesterday. I was acquainted as a single joint expert by the court, but two by two parties, but the courts told them they had to go away and get a single joint expert to make sense of what they were doing. I use my quantity surveying skills to write and prepare my expert witness report to say what counts on the job. Um, and then, you know, it's mainly down to what I know about sort of contracts constructions, and then a lot to do with um, um, this scheme and construction act when it comes down to adjudication and mediation to a certain degree.
CN: Right. Okay. So that's quite interesting as well because, from my research, what I've carried out in my literature are contractual obligations, and not complying with them seems to be the main cause. But I've focused a little bit on the extension of time. So, it still seems to be one of the most common causes of dispute. Can you explain why you think that is?
Interviewee P2:Um, well, it's a little bit like money in the sense that people, you know, have two parties pulling opposite directions. So that's why there will always be disputes in the construction industry: you've got one party with a budget, and they don't want to spend any more than that budget. And you also got a contractor; their main role is to finish the job and make a profit. Um, and, and they're always, you know, not always, but ok, let’s say 99.9% of the time, there’s change or variation to the contract because it allows for it. Clients sometimes don't mind paying a bit for a change if it's obvious, but they don't want to pay too much. The times are a funny sort of thing because a lot of the time, uh, buildings are being built for business use. I mean, set aside a home, for example; let's I never get involved in my mediation. I don't often have many arguments about extensions of time. They usually fall away quite quickly. It's usually a monetary thing cause if you imagine the homeowner, it's money out of their pocket. Whereas you have a business, they have a budget set, but they're probably the most important: if they're a developer or a commercial entity, an office or business, then time is money to them. So, if you're trying to get to say to them, well, you've made this variation, you made this change, this compensation event, if it's NEC, then they're saying right, we're going need more time. Well, time also includes money sometimes, not all the time, the times a funny one because it's someone trying to say, well we, you know, we need an extra 10 weeks, and then they're only a couple of months in, and then they're like oh my god. I think times are a difficult, difficult one to get your head around. And it's quite subjective as well. People see numbers on a page, and they think, well, okay, 10 grand for that will be about right or look and see 20 grand, and you laugh, go away and think about that again. Time is quite subjective, so I think the subjectiveness of extensions of time can be quite conflicting. Um, I think clients struggle to get their heads around why you would need more time. I think a lot of the time.
CN: So, um, again, a little bit deviating away from that as well from some of my research. Uh, many disputes between the common parties are between the client and the main contractor. So, I'm just guessing if there's a link between that and, and what you've just mentioned there about extensions of time cause it does seem to come out that quite a lot of the, you know, a lot of the disputes are between the contractor and the client more than the contractor and subcontractor for instance.
Interviewee P2:Yeah. Well, you've got, you've got, you might, you might see subcontractors or, or some effect on the project for whatever reason they're not performing, the main decision-makers are the top who's the client or employer or whatever you want to call them. Um, they're the ones that are making the decision. So any decisions and filtered down to, to, um, to the cubbies and suppliers, you know, at these things in mind by the employer, I’ll call them the employer, um, might have an effect on the main contractor, but then if it's the time-related issue, it's going to affect all of their suppliers and all of their subcontracts because if they, if for instance, they've given them a program that subcontractors, say use a 10-week example again, you know, it's about thinking about starting work, right we've got that job starting in five-week time and then he tells them we can't do that for 10 weeks that has a massive effect on them because there are bodies however many people or plant on and all that sort of thing. They might be desperate for that work.
They then might get more work, meaning they might not have the same resources when doing the job they would have done five weeks ago. Hasn't it been for 10 10-week extensions of time, all sorts? There's a myriad of things going on there.
CN: Yes, I suppose. When you look at it that way, an extension of time is probably the number one cause it affects more than just one party. As you said, it affects the contract. Uh, it affects the subcontractors, the suppliers. So, there's more room for disputes.
Interviewee P2: My experience is that I see more money disputes than I do an extension of time; sometimes, they are linked in some ways. But they usually argue over the money is usually they all are; some of them use extensions to bolster their arguments, but you know, most of them speak openly, and at the end of the day, it comes down to money on the table.
CN: brilliant. So, what factors do you believe contribute to a dispute arising? It can be any dispute, probably better than you deal with daily.
Interviewee P2:I can answer that very easily
CN: Yeah. Say that again, sorry. Uh, I missed that
Interviewee P2: It's simply communication to me.
CN: Right. Okay. Brilliant.
Interviewee P2: Every dispute I see, especially in mediation, I get the parties to tell me what's happened right from the start. And then they sat both telling me the story, hopefully in the same room. I then spot and go there: your communication failed, and a dispute developed. Um, whether that's a QS and I call notices under the under the contract also communication cause there's all, there's all types of communication. So, suppose they're not supplying an application. In that case, if the contractor is not applying for money at the right time because he hasn't read the contract or the employer's not issuing payless notice or payment certificates on time, it's all; it's all a part of communication. When that doesn't happen, they don't talk to one another, and often it leads and builds up, and others come in, fan the flames, and before you know where you are, you're in a dispute.
CN: Yeah. Brilliant. In your experience, what would you consider the number one cause of dispute in your organization that you would deal with on a majority basis? Basically?
Interviewee P2: Well, as a matter of money, generally, payment is the main issue, as is lack of payment. Um, by employees is the main the main.
CN: The main cause that you'll deal with? Yeah.
Interviewee P2:Yeah. Most definitely. Yeah.
CN: Brilliant. Again, I looked a little bit at the history of ADR to see how it came about. So, it does seem to be they have become more reliant, uh, on, well, sort of, it became more popular, should I say, in the 1990s. Uh, why do you think this is since you've been working in, I mean, I suppose you haven't been working in ADR since 1996, I believe you said.
Interviewee P2:No:: my background is I have had a building company and a family building company for 15 years, and then I moved into more consultancy and surveying work and eventually.
CN: yeah. Into the sort of law side of it. Yeah. So why would you think it's become more popular? Is, is it because the litigation do you think was potentially getting too expensive, so they needed to incorporate something, or
Interviewee P2: It's not a case of it when it got too expensive; to me, it was always been expensive. It's not as expensive as it used to be, but it is incredibly expensive and slow. Um, at the end of the day, as you know, and I do, cash flow is king. So, construction companies need cash to survive. I'm sure you came across the Latham report in your research.
CN: Yeah, I've mentioned that in the history section. Yeah.
Interviewee P2:Yeah. So that was, it was down to adjudication, for instance, if, you know, you have a dispute with other parties in a contract. You have to go to court, and by the time you've got to court, you've probably busted, you know, so, you know, and then cause main contractors and large employers were using that to send companies because they knew once they, they didn't pay them and then they went under they wouldn't have to, wouldn't have to pay anybody. Um, that was trying to stop that, and then, of course, the construction act was put together, and, you know, the first version spawned from that came from the adjudication scheme. Um, the construction contract regulation in 98, um, I think what the first act was 96
CN: yeah, yeah. 96. Yeah. Yeah.
Interviewee P2: So, um, there rules the basis of adjudication basically and because adjudication, it was supposed to be quick and dirty to get the money flowing in the right direction. That was all it was; that was all it was ever designed for. I mean, it's turned into a different animal now.
CN: All right. Okay.
Interviewee P2: Well, I mean, all sorts of disputes are going to adjudication. Now you've got what I call technical adjudications, which are, you know, paying fewer certs and paying fewer notices. Was this valid? Was this a valid payment, application, etc.? And you've got full-blown final accounts, full of extensions of time and expert reports on, you know, programs and delay analysis.
CN: So this seems to be more
Interviewee P2: Well, you still have everything to be done in 28 days.
CN: Wow. Okay. Okay. So there seem to be more issues arising within that then.
Interviewee P2: Yeah, because the act says that, um, a party to a construction contract can, uh, can, you know, go to an adjudication at any time. It doesn't say it has to be about payment or it has to be about XYZ. It can be a dispute; as long as there is a dispute, you can take it to adjudication. My, my, um, wife was Crossrail, and she had an adjudication between, you know, the, um, employer and Vinci, uh, and their dispute was multi-millions. Um, numerous ones. But, um, you know, I think that one they gave the adjudicator/arbitrator, he offered an extension time. They did it in about eight weeks, but it was tens of millions.
CN: Wow. So, it was a pretty quick turnaround then for that kind of cost, though.
Interviewee P2:Well, it's massive. And, and because once that adjudicator has made his decision, unless you then trot off to court to get it, you get it, you know, that's the only way that adjudicator decisions, going to change until someone follows through what the adjudicator says you can never know much about anyway. So, he says you'll have to pay something unless he's completely got it wrong. It's going to, you can, I mean, you can take them to court if the adjudicator has got it seriously wrong, but you'd want some money behind you to do it because ordinarily, the courts will enforce the adjudicator decision whether he's got the law wrong, or the facts wrong is doesn’t matter. His decision is enforceable as long as he's answered the right question, even if he's answered that question wrong. So, it's very difficult.
CN: Wow, okay. That's interesting.
Interviewee P2:Yeah.
CN: Um, right. Okay, I'm moving on to positives and negatives, then. So, in your opinion, do you think ADR positively or negatively impacts how disputes are resolved and to link the next question as well, probably? Do you think it positively or negatively affects cost and time? So do you think so? I'm trying to say positive and negative about how it's resolved, time, and cost.
Interviewee P2: Well, if you compare it to litigation, it's got to be a positive thing. Latham had the bright idea that you need cash flow in the industry, and you couldn’t keep just withholding money from cubbies and supply chains and expecting the industry still to perform and projects to perform. If you want bad projects, you know not paying people is a pretty way of doing it because the performance falls, and the job doesn't get done properly. Um, so there are two strings. Yes. Cash, but also, what are we trying to do here? What's the contract about what we are building? What's the whole purpose of this contract? Um, so regarding, is it, um, I can't remember exactly how you worded your question, but is it positive that ADR is good for disputes? Absolutely. Yes. It is. It's a major; I mean, it's a fact that you won't know and you won't find anywhere. But, um, I mean the RICS, the main two gigs in town when it comes to adjudication, for example, for referrals, and the RICS presidents panel for adjudicators is the busiest by far in all the other panels. I mean, you've got RICS, you've got RIBA, you've got, um, uh, the solicitors association, um, sounds a bit like Tesla, but it's not, and then you've got the bar association and various others. But the RICS last year, um, there were 1200 adjudications referred to the RICS nominated panel, and I think they're up 10% already this year. So, we found that I'm a member of Arbrix, so we find all that stuff out when we go to once every six months conference; the next one is in March 92. So that’s information you won't find anywhere else. Um, that’s how effective and, um, how effective the industry thinks it is cause otherwise, they wouldn't use it. I couldn't give you the same facts and figures about mediation. I know that um, one of the solicitors, they do a mediation biannual mediation paper, which you might have encountered.
CN: Yeah, yeah, I have. Yep.
Interviewee P2:Yeah. So, they give some numbers on that, but that's a bit wide. That doesn't view the construction industry; that's just a commercial mediation. Excuse the figures a bit, but mediation also works well. So long as the lawyers don't get involved too much. But you know that's part and parcel of the work, and I say that with proof of my record with mediation. If I mediate, I have parties contact me directly. I have parties; I get nominated through the clerks' room, one mediation panel, the ADR group, and the RICS. I'm on the president's panel, uh, the president's panel of mediators. The RICS now the RICS panel generally refer disputes to me. Oh, sorry, refer disputes to mediation that are homeowner disputes and very rarely they got lawyers involved because just the sums are not, the sums are large to them; they might be tens of thousands, and I've had them over a million, but. Um, they haven't got lawyers involved who billed them 40 grand for a load of work. Therefore, I have a hundred per cent success rate with the RICS. I think, um, whereas all the other panels I’m around about, sort of seven of 10, because often, unfortunately, it doesn't end up being an argument about the dispute. Still, it ends up being an argument or a barrier to settlement, should I say, about legal fees. Um, so you know, unfortunately not. That's a sidearm of, um, mediation, and the reason they don't settle is the problem.
CN: So, um, would you say, um, as well, just going back to some potential causes, do you think? Cause I think we brushed on how complex the industry and contracts are. Do you think that has incorporated more disputes there? How complex are the contracts not understanding the obligations and not administering the contracts?
Interviewee P2:I think it’s the users never cease to surprise me, albeit if they start reading, I’d probably be quickly out of a job, but I'm never, ever ceased, I never am surprised by how big a job it is and how important the payment structure of a contract is. Yet it seems neither party has a clue what they're doing when it comes down to it. So, they both get it wrong when they do fall out between themselves. Um, whenever I've got a new, fairly recent client who was successful in adjudication, I wasn't overly surprised after I got all the information I didn't need as I had it at the start anyway. I'm now doing what I call conflict avoidance; you know, this contract says that your due date, you've got to put your applications on the 24th of the month; if you put it on the 23rd or the 25th you will not, you are not entitled to any money this month. And they always said, well, that can't be right. Look, that's what the contract says you signed up to it; no, we haven't signed it, so that doesn't count, and I get all that. It doesn't matter if you're on the job you're starting, so by your conduct, you've agreed you got to put in your application, so immediately, all the contractors have got to do two things. He has to do what it says on the plans and in the specifications build, whatever it says, and the other thing he's got to do is try and do it on time. Then, all he has to do is ask for his money to keep the business going; not a great deal to ask, is it, to be honest? It never ceases to surprise me how they haven't got a clue, and they don't even read the contract when I tell them the final payment date. I don't know. When's your application going to be in? I don't know. When's your due date? I don't know. So, it never surprises me, and then after that, I'm teaching them, you know, I lose clients all the time by giving them too much information, I suppose. You know, after a while, they learn. Um, because I have to say to them, well, if you put your application in time, it's valid and if it's valid, then the other. Then you don't get paid, and they don't serve a pay less notice or anything else, then you can write to them and say, you know, say seven days, you don't pay us in full were downing tools and we'll leave the site until we are paid. Well, the Construction Act says you can, so you can, but you've got to get all your ducks in a row first.
CN: Yeah.
Interviewee P2:But because they don't, that leads to full-blown disputes because both parties have got it wrong, and it's all about who's got it more right than the other one or who's cocked it up less than the other one.
CN: All right. Okay. That's food for thought. That's interesting. Um, yeah, I suppose I suppose sometimes it will happen as is, you know, construction is quite a fast-paced environment, and I suppose people are a bit ignorant to the contract obligations cause they've got that much going on. I suppose you could look at it so they don't spend the time needed to sort through the contract. I mean, I think it's fair, I suppose it's not just the construction industry. I think any contract, not most people, I would say, wouldn't look through all the terms and conditions of everything.
Interviewee P2: No, but you might; if you bought a house or a car on finance or something like that, you'd certainly look through all your numbers and look for when you would pay out your money and how much it would be. A construction contract is probably about 1 and a half pages that matter to anybody. Breaching other parts has no effect, so if you're building it on time, um, and you'll, you know, put your applications in for payment, there's nothing much more the contractor has to do because every building is different. The conditions we build in are different, and every day is different. So many different parties are involved, so you've got architects, consultants, contractors, subcontractors, supply chain, your employer, and maybe a bank, or you may have a special purpose vehicle to set up to do that development. There are so many hands in the pot or chefs in the kitchen, or whatever you want to call it, that has an effect. And you only really want one of those not performing, and suddenly, the whole lot starts tumbling.
CN: Right, brilliant. So, moving on a bit, I think we're sorting towards the latter end of the questions. I assume you'll have many good views on ADR, but I've got to ask you anyway. So, what, what are your views on ADR? Good or bad? And this,
Interviewee P2:sorry, what? Say that again.
CN: So, what are your views, good or bad, on ADR being incorporated into the standard form of contract? I mean, like I said, I suppose there's a million. Good, good, you know, views
Interviewee P2: yeah, there are a million good ideas.
CN: Anything negative, like what would you probably consider towards ADR, or is it mainly a positive system?
Interviewee P2: The only thing I would say about ADR is that I think they could probably do with something in between. Um, at the moment, you've got adjudication and mediation a bit different because they're slightly different, but you've either got adjudication or the courts. There is arbitration; it's mainly international, but very rarely do parties use arbitration nowadays in the UK; it's just as slow and expensive as the courts. The only benefit is it's private, and you can, and you have sort of experts. Mind you, we have experts in the courts, and now we have the TCC. But, um, I think having a hundred-day arbitration scheme built into the construction contracts that would resolve larger disputes and larger projects may be a good idea. But that’s a bit pie in the sky.
CN: yeah. Throwing some ideas out there
Interviewee P2: If you've got adjudication and the adjudicator thinks you need more time, you can ask for it as long as the referring parties are happy you can do it. And then he's good to go. So overall, it is good.
CN: Right. So, what's your most favoured method of dispute resolution compared to the others? Like, what would you say?
Interviewee P2: Without having to go to tribunal, that's the best one, you know, not having to go adjudication, not having to go to a judge, not having to go to an arbitration or not even having to go to a mediation because if you can help the party to, um, negotiate and keep the job going and get paid.
CN: Yes. I was going to say, does that come under negotiation?
Interviewee P2: I have to adjudicate with people that my client doesn't want to go to adjudication at all, and I don't want him to either. It is to say, look, if you don’t stop messing around, this is what will happen. Just because you serve a notice doesn't mean you have to go to adjudication because adjudication doesn't start until the referral lands on the adjudicator's desk. So, you've always got that. So, it's a little bit of a bit, you know, putting them, putting their arm behind their back and saying, look, can we get around the table and talk about this? Otherwise, you know, we going to adjudicate, and they'll decide it, and you'll have to pay interest, and you know, you'll have to spend time defending it, etc. So, there's a bit of that, I know, yeah, I have, I give that advice more than I give that going to adjudication straight away.
CN: Okay. So, in your most recent ADR claim, which route was taken, and how long did it take to render an award? That's if you're allowed to talk about that; if you're not allowed to talk about anything like that, it's ok.
Interviewee P2: No, I can, so I had one last week, but it wasn't successful, unfortunately. Um, yes, you know, it was 28 days, and we got the decision. Um, the quickest ones are the mediation ones, I suppose, so I've got one Friday, but I had one, um, a couple of weeks ago, and you know, you're, you're looking at half the day to prepare, and a days mediation, you get a result.
CN: Right. That's quite quick, then.
Interviewee P2: So that's the quickest route if you like, not necessarily for the party's cause they might have been living with it for a couple of years. Um, that's the quickest way. If you say it depends cause if a project is ongoing, adjudication is quickest because you can, while it's under the contract, you can refer that dispute anytime. So, um, that's the fastest route. Mediations are usually about finished jobs, and they're arguing between the final account and defects and bits of other pieces, um, so yeah.
CN: Brilliant. Um, so that leads me to the final question. Uh, so have you been ever, ever involved in a dispute that's gone to court, so litigation and if, if you have, how long's the entire process taken to resolve, so have you acted as an expert
Interviewee P2: I haven’t, actually; as soon as it started to look like that, then I would pass it to lawyers, so I would then step away because when that usually happens, I'm involved with a client who’s in dispute with someone, nothing happened as in a dispute resolution, and then someone presses the litigation button. Um, we can hang on for a while, and hopefully, we can advise and then maybe get them out of that and then get back to some negotiation or settlement. But as soon solicitors start getting appointed, we must step away because that's the Lawyer's role. I'm involved in litigation, but that is as an expert witness and not having a party representative advocate.
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