Friday, June 22, 2012

Resolution of Construction Contract Disputes

Once a construction contract is reached, a variety of problems may emerge during the course of work. Disputes may arise over quality of work, over responsibility for delays, over appropriate payments due to changed conditions, or a multitude of other considerations. Resolution of contract disputes is an important task for project managers. The mechanism for contract dispute resolution can be specified in the original contract or, less desireably, decided when a dispute arises.

The most prominent mechanism for dispute resolution is adjudication in a court of law. This process tends to be expensive and time consuming since it involves legal representation and waiting in queues of cases for available court times. Any party to a contract can bring a suit. In adjudication, the dispute is decided by a neutral, third party with no necessary specialized expertise in the disputed subject. After all, it is not a prerequisite for judges to be familiar with construction procedures! Legal procedures are highly structured with rigid, formal rules for presentations and fact finding. On the positive side, legal adjudication strives for consistency and predictability of results. The results of previous cases are published and can be used as precedents for resolution of new disputes.

Negotiation among the contract parties is a second important dispute resolution mechanism. These negotiations can involve the same sorts of concerns and issues as with the original contracts. Negotiation typically does not involve third parties such as judges. The negotiation process is usually informal, unstructured and relatively inexpensive. If an agreement is not reached between the parties, then adjudication is a possible remedy.

A third dispute resolution mechanism is the resort to arbitration or mediation and conciliation. In these procedures, a third party serves a central role in the resolution. These outside parties are usually chosen by mutually agreement of the parties involved and will have specialized knowledge of the dispute subject. In arbitration, the third party may make a decision which is binding on the participants. In mediation and conciliation, the third party serves only as a facilitator to help the participants reach a mutually acceptable resolution. Like negotiation, these procedures can be informal and unstructured.

Finally, the high cost of adjudication has inspired a series of non-traditional dispute resolution mechanisms that have some of the characteristics of judicial proceedings. These mechanisms include:

* Private judging in which the participants hire a third party judge to make a decision,
* Neutral expert fact-finding in which a third party with specialized knowledge makes a recommendation, and
* Mini-trial in which legal summaries of the participants’ positions are presented to a jury comprised of principals of the affected parties.

Some of these procedures may be court sponsored or required for particular types of disputes.

While these various disputes resolution mechanisms involve varying costs, it is important to note that the most important mechanism for reducing costs and problems in dispute resolution is the reasonableness of the initial contract among the parties as well as the competence of the project manager.


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