Construction Disputes – Why We Need to Talk About Conflict

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In the world of construction projects, disputes are almost inevitable.  The complex nature of projects, with numerous stakeholders, intricate contracts, and changing conditions, often leads to conflicts that can threaten the project’s success.  To navigate this challenging landscape, it’s crucial to have effective dispute resolution mechanisms in place.  Whilst nobody likes to talk about conflict, when disputes are not resolved at an early stage in a project, they will inevitably grow.


Case Study – Introduction


Peter Scott Caldwell is a Chartered Arbitrator, Mediator and Dispute Board Member, with a background on the owner’s side of construction projects.  His journey began with the Dallas Area Rapid Transit (DART), with a mission to establish light railway lines to elevate the status of Dallas as an international city.  Early projects followed standard design and build contracts, but as complexity increased, so did conflicts.  What followed was a fascinating example in how amicable relationships can sour into courtroom battles, leading to a search for better dispute resolution mechanisms.


The Introduction of Dispute Resolution Boards into Construction Contracts


Recognising the need for a new approach to dispute resolution, Peter was instrumental in introducing the concept of Dispute Resolution Boards (DRBs) into contracts.  Over a period of 15 years, these boards were successfully employed on complex projects, demonstrating their effectiveness in resolving disputes at the field level.  The DRBs, typically composed of industry experts rather than lawyers, encouraged open dialogue, which often led to resolutions without escalation.  These kinds of open discussions proved to be an effective way of resolving and, often more crucially, avoiding disputes.


The Importance of Early Resolution


The core philosophy behind DRBs is to address disputes as soon as they arise.  Regular quarterly site visits allowed DRB members to ask questions, identify concerns, and facilitate discussions at the field level.  By keeping communication lines open and addressing conflicts promptly, projects could maintain a smoother path.


The DRB Process


DRBs employ a relatively informal process compared to traditional litigation or arbitration. They prioritise discussion over legalities, with panels comprising individuals with technical expertise in construction.  While lawyers are allowed at meetings, their participation is limited, reinforcing the focus on practical, technical solutions at a much more informal level.


Another key advantage to the DRB process is the input of neutral parties, who are in a position to ask open, honest and non-leading questions regarding the nature of the dispute and to discuss and propose potential solutions.



Success Story: The Power of DRBs


Eighteen months into the DART’s challenging light railway project, disagreements multiplied, and the contractor was initially reluctant to involve the DRB.  However, by utilising the DRB, the project impressively resolved twelve contentious issues.  What stood out was the impartiality of the DRB in objectively evaluating each party’s position and helping find a fair solution.  This approach not only saved costs but also preserved the contractor’s continued involvement in future projects.


Lessons Learned


In summary, this example highlights several key lessons:


  • Early Resolution is Key: Addressing disputes as soon as they emerge can prevent them from escalating into major roadblocks;


  • DRBs Promote Open Dialogue: Dispute Resolution Boards, composed of industry experts, facilitate open discussions and practical solutions;


  • Informality is Effective: The DRB process is less formal and litigious than traditional legal avenues, reducing time and costs;


  • Impartiality Matters: A neutral party’s involvement can lead to fair and balanced decisions that benefit all stakeholders.


In an industry full of complex issues and potential conflicts, effective dispute resolution mechanisms like DRBs can make the difference between project success and failure.  The case study outlined in this article provides valuable insights for stakeholders in the construction sector seeking smoother and more efficient ways to resolve disputes and keep projects on track.



Further reading


The Dispute Resolution Board Foundation (DRBF) is a non-profit organisation dedicated to promoting the avoidance and resolution of disputes worldwide using the unique and proven Dispute Board (DB) method.  Click here for more information on the services available.


This topic was discussed in our webinar ‘Engineering Disputes – A Tribunal’s View with Peter Scott Caldwell & Diane Gollhofer Raines” in October 2022.  Click here to view the webinar and presentation.


To find out how Barton Legal can help you, please click here.