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TABLE OF CONTENT
DEFINITION OF DISPUTE
CRITICAL FACTORS AFFECTING THE USE ADR PROCESSES SSPECIFIC SOURCES OF CONSTRUCTION DISPUTE HIERARCHY DISPUTE RESOLUTION PROCESSES
DEFINITION OF DISPUTE
i. Dispute is a misunderstanding between two parties, either contractual or non- contractual (Oxford Dictionary) Definition of the dispute may be circumscribed it may inevitably involve resolution of other matters which may not specifically have been raised into separate or discrete disputes.
ii.
iii. The judicial development of the definition of dispute required to give an adjudicator threshold jurisdiction has been instrumental in encouraging the Parties to exchange views and facts which support their case, but it can be a rather blunt instrument for reducing dispute and far short of a preadjudication protocol (Construction Law Handbook, 2007).
Dispute is unable to eliminate because the nature of the construction is full risk. (Thomas 1995)
A dispute defined as a class or kind of conflict, which manifests itself in distinct, justifiable issues. (Brown and Marriot (1993)).
A dispute will not exist until a claim is asserted by one party which is disputed by the other party (Bachner (1988))
CLIENT
CONTRACTOR
CONSULTANT
Poor communication
DISPUTE
DISPUTE
DISPUTE
ii.
In Table, Fenn et al (1997) provides a synopsis of the findings of nine frequently cited studies of the sources of disputes.
SOURCES OF DISPUTE Six areas: Unrealistic expectations, ambiguous contract documents, poor communication, lack of team spirit and changes Six areas: payment, performance, delay, negligence, quality and administration Three areas: people, process and project Seven areas: contract terms, payment, variation, time, nomination, renomination and information Six areas: Changes of scope, changed condition, delay, disruption, acceleration and termination Two areas: root causes and proximate causes Ten areas: management, culture, communication, design, economics, tendering pressures law, unrealistic expectations, contract and workmanship Four areas: acceleration, restricted access, weather and changes of scope Two areas: misunderstanding and unpredictability
Hewit (1991)
Many types of construction disputes, including: 1. Owner's failure to pay for work or lacks funds to continue work:
We work with contractors find legal relief where an owner has failed to pay. From extending the substantial completion date (SCD), pursuing a claim for increased costs (including the cost of mobilization and de-mobilization) seeking change orders or and enforcing liens, we can assist you in getting the amounts you are owed.
A survey of more than 300 construction dispute in the USA leads to the conclusion that their causes can be largely traced to five sources (H. Murray Honds 1979): i.Errors, defect or omissions in contract documents ii.Underestimation of the cost by the client, the construction or both iii.Changes in conditions e.g. unforeseen ground conditions iv.Claims from end-users (legal right of the owners and tenants) v.People involved in construction process
Research
Sources of Dispute Project Uncertainty; Contractual Problem; Opportunistic Behavior; Contractors financial
Mitropoulos
Ambiguous contract documents; competitive/adversarial attitude and dissimilar perception of Spittler fairness by the participants
Booker Sheridan
Payment, delay, defect/ quality and professional negligence Valuation of variations; valuation of final account and failure to comply with payment previous
Variations; ambiguities in contract Document; inclement weather; late issue of design information; delayed possession of site; delay by other contractors employed by the client and Yate postponement of part of the project
Change of Scope, Change Conditions, Delay, Disruption, Acceleration & termination. Hewit
PAYMENT
LACK OF COMMUNICATION
VARIATION
INCONSISTENCIES IN CONTRACT
DETERMINATION OF
CONTRACT
SETTLEMENT AGREEMENT
BENEFIT
NATURAL OF PROCEEDING
PROCESS OF PROCEEDING
SIGNIFICANT
a) Bindingness of the decision (Bindingness) b) Enforceability of the decision (Enforceability) c) Obtaining fairness (Fairness)
1. SETTELEMENT AGREEMENT
2. BENEFIT
a) The cost involved (Economy) b) Preservation of relationship (Relation) a) Confidentiality of the process (Confidentiality) b) Privacy of the proceeding (Privacy) a) Obtaining creative remedies ( Remedy) b) The width of the remedy ( Remedy)
a) The parties ability to control over the proceeding (Control) b) Flexibility of the proceeding ( Flexibility) c) The duration of the proceeding (Spped)
3. NATURE OF PROCEEDING
5. PROCESS OF PROCEDING
The three attributes as extracted significant: Factors 1 are: 1.Bindingness 2.Enforceability 3.Fairness Factor 2 consists of the:
1.Attributes 2.Economy 3.Preservation of Relationship
Address the benefit that result from a successful ADR process
Factor 3 includes:
1.Confidentiality 2.Privacy
Relate to the nature of the proceeding to avoid dispute becoming know to public
attributes extracted
LITIGATION
BINDING RESOLUTION
NON-BINDING RESOLUTION