DISPUTES: an ounce of prevention is better than a pound of cure

White Associates Bank Funding

By Jesse-Paul Conradie

It is well known that New Zealand’s construction sector is buoyant and one of the top contributors to its GDP. That said, it is also no secret that the industry’s performance is currently strained by growing demand, lack of capacity across the supply chain and pricing and margin pressures.

The current environment is not sustainable. Invariably, over time, as the saying goes, ‘something’s gotta give’. And we’ve all seen it happen recently. Much to the industry’s dismay, several industry players have succumbed as a result of a number of contributing factors. When companies are stretched, their ability and capacity to absorb the adverse effects of risks withers.

As a consequence, it is no surprise that an adversarial culture burgeons, and disputes proliferate. And we have all seen disputes have devastating consequences, even for established companies – most recently shown by Arrow International placing themselves in voluntary administration after being on the losing end of a $4.2m contractual dispute.

Some common risks and causes of disputes include, but are not limited to:

  • Poor risk allocation
  • Incomplete design information and variations
  • Unforeseen ground conditions
  • Discrepancies and/or errors and omissions in contract documents
  • Contracting parties failing to understand and/or comply with their respective contractual obligations, and/or
  • Unsubstantiated or inadequately drafted claims

No one disagrees with the fact that disputes frequently cause damage to business relationships and reputations. Not only can they be expensive and protracted, but the implications on finances and resources can be immense when they need to be resolved by complex and cumbersome processes.

The situation begs for a paradigm shift

The focus should rather be directed into two areas. Firstly, towards conflict avoidance. Then, if disputes do arise, how early interventions can assist in effectively mitigating the adverse effects of dispute resolution.

Early interventions can assist in effectively mitigating the adverse effects of dispute resolution.

Active dispute avoidance initiatives could in essence be condensed into the following three core risk management principles:

  1. Engaging and involving all relevant stakeholders early including the designers, contractors, key suppliers/subcontractors, client, end users and funders during the initial phases of the project to ensure that expectations and deliverables are properly coordinated.
  2. Promoting a collaborative approach by involving relevant project stakeholders in processes of active risk identification, risk response planning and risk control and monitoring.
  3. Realistic and fair allocation of risks to the party best suited to manage/absorb the risk.

As with any relationship, open communication is key. At all project levels, the proactive management of risk allocation and behavioural attitudes is vital in order to address disagreements at project inception.

Every project is unique, and so are the associated risks. Incorrect allocation of risk can lead to inefficiency, delays, excessive costs and disputes. It is therefore imperative for parties to remain engaged in active risk management throughout the different phases of a project.

Once disagreements occur, the key is to identify the problems and quickly take appropriate action. Every reasonable effort should be afforded to settle disagreements expeditiously and to avoid arbitration/litigation.

In our view, more can be done to diverge from the adversarial approach which causes a significant financial drain on resources and damages relationships.

Top Tips for dispute avoidance in construction projects:
In order to promote a collaborative dispute avoidance culture, and to
resolve disagreements before they become disputes, parties could for instance feasibly:

  • Develop and include a process within their contract to resolve issues at project level.
  • Ensure parties are afforded equal opportunity to present their case.
  • As a precursor to a more formal procedure, escalate the disagreement to senior staff of the respective organisation with the aim of settling the matter at hand.
  • Employ the services of suitable facilitators, conciliators, and dispute avoidance boards to aid in resolving the issues.

Given the current strained market conditions, with people looking to enforce contracts in ways that will lead to more disputes, a concerted effort is required to reduce the incidence of formal disputes in order to ensure the sustainability of our industry.

Dispute avoidance is all about adding value. So let’s endeavour to change the current mindset and culture.

In July this year, we are planning to run a seminar for project finance teams on the state of the market to give funders a heads-up on trends in commercial/residential construction space so you can gain insights as to where we see the market moving forward. Please contact us if you’d like us to come to your office to run the seminar.