Dispute Avoidance – Start with the end in mind!

18/9/17
Avoid

There has been a recent flurry of activity in the construction press about the abstract concept of ‘dispute avoidance’ which seems to be suggesting that perversely most contracting businesses are intent on becoming embroiled in disputes.  Even to a cynical surveying type this would seem to be stretching the old cliché that ‘you don’t have to be mad to work here, but it helps!’ just a little too far!

Anyone who has managed a business or teams of people will probably be familiar with the management tool known as an ‘Expectations Exchange’.  This very simple but effective tool is intended for use where new teams are being created to foster effective working relationships or in existing teams to identify and eliminate conflicts between individuals, groups, multiple parties and is universally applicable.  It starts with a series of simple questions: ‘What should you expect of me?’ ‘What should you not expect of me?’; ‘What should I expect of you?’; and ‘What should I not expect of you?’.  I suspect that even the unfamiliar will already be appreciating how this would operate.

For me a contract is an ‘Expectations Exchange’ – it should set out clearly what is expected from one party by the other and vice versa.  The time to confirm understanding and eliminate potential misunderstandings is at the beginning, pre-contract, before stepping foot on the site.  Pre-contract negotiations, effective contract vetting and properly assembled, unambiguous contract documents are the foundation for avoidance of a significant proportion of disputes which arise in the industry.

If every contractor, or sub-contractor clearly understood its rights and obligations, and captured and communicated them effectively to its project personnel then this would similarly negate the impact of disputes arising out of failures to understand the detail of the bargain which has been reached.

I accept that ‘collaboration’ and undertakings to ‘co-operate’ between the various organizations involved in a project may have a positive effect in driving the culture, but behaviour is a facilitator or an enabler, if you like, it cannot turn a bad bargain into a good one.  There is no substitute for getting it right in the first place and understanding what is expected of you and what you can expect of others.

 Jason Farnell