Construction Dispute Avoidance
When entering into a construction contract, one party expects to receive a service, the other party expects to receive payment for that service. What neither party expects is a dispute. Unfortunately disputes regularly occur on construction projects. Typically disputes relate to durations, payments, and contractual interpretation. At Edge Consult, our expertise in dealing with these three areas provides us with the essential practical experience to assist you in construction dispute avoidance.
Whilst many disputes are avoidable, the foundations of a dispute are often created long before the dispute itself becomes apparent. Often the progress towards a dispute starts the day the contract is agreed. This could be due to unclear or ambiguous drafting of the contract, incorrect contract documentation or simply a misunderstanding of those contractual obligations and liabilities which have been accepted. At Edge Consult we have extensive experience with reviewing and preparation of contract documents. With our support and advice, you will have a better understanding of the risks, procedures to be followed and indeed alternative terms and conditions that could be negotiated to protect your position.
Likewise, poor definition of the project scope, design, and specification, often with ambiguous design responsibilities between the Employer and Contractor are also a source of dispute that we frequently see at Edge Consult. We provide independent reviews of documentation to identify areas where such issues may arise and ensure documentation is better defined, thereby reducing the risk of disputes.
Planning and Programming
Many disputes centre around the timing of construction operations. At Edge Consult our experienced planners/programmers can either provide programmes or analyse programmes from third parties. If your project starts with a realistic programme, you have already addressed one of the major risks that frequently lead to disputes.
Commercial and Payment Matters
Another common area of dispute is quantum, i.e. how much should be paid. Too often disputes arise as a result of unrealistic expectations by the parties as to the value of works undertaken. At Edge Consult we can provide an independent third-party assessment of the amounts involved, application and payment procedures, notices, and the contractual basis to justify payments. Early input from Edge Consult can significantly reduce the risk of payment disputes developing.
Project Monitoring, Reviews and Audits
Edge Consult are frequently appointed to independently monitor construction progress and payments, reporting directly to our client. Our clients include building employers and funders for whom we monitor progress, administration and payment matters, or contractors seeking an external opinion on site progress and management of their contract. The extent of this service can be tailored to meet your specific construction dispute avoidance needs.
The earlier that Edge Consult are appointed the sooner we can start to address your concerns and develop a route map to limit your exposure to potential or ongoing disputes. Where a dispute has already become apparent, the next step is to ensure that dispute does not escalate. At Edge Consult we find there are five dispute stages, each presenting different challenges. Edge Consult’s appointment at any of these stages can significantly enhance and secure your position. These five stages are: –
- Stage 1 Parties acknowledge there is a problem and wish to resolve it – We can provide technical input to identify a way forward and a methodology to prevent reoccurrence of the problem.
- Stage 2 Parties start to identify each other’s failures and become increasingly defensive – We can help identify the strength and weakness of the respective positions and offer potential compromise solutions, thereby maintaining co-operation between the parties.
- Stage 3 Parties develop perceptions that may not reflect the reality of the situation – We can provide a detailed analysis of the problem, make recommendations, and ensure appropriate record keeping is maintained, just in case.
- Stage 4 Parties become progressively uncooperative with each other, with a desire to win their argument – We can provide a last chance facilitation workshop, whilst ensuring our client is in a robust contractual position, should the dispute escalate to adjudication or other dispute process.
- Stage 5 Parties consider formal dispute resolution, such as adjudication, as the only solution – We can provide a full adjudication service to resolve the dispute, be that as Party Representative or working alongside your team, providing technical support on matters such as time, cost and/or contractual matters.