Assessment Of Defects In Concrete Structures And Evaluation Of Safety Of Concrete

Infrastructure Training5th Day

Claims Management & Dispute Resolution Methods, Structural Forensic Engineering and

Case Studies By:

MAHMOUD ABUFOUDAMSc Civil Engineering

Content Conflict Management & Dispute Resolution

Conceptual Differences Conflict in Construction Construction Dispute causation DRM ADRM

Forensic Engineering Definition Fundamental questions of fact Why forensic engineering Influence of improved practices Stages for Forensic Engineering

Conceptual Differences Claim

“A formal demand for compensation, filed by a contractor or the owner with the other party, in accordance with provisions of the contract documents”. (CMAA)

Conflict “Divergence of interest, objectives or priorities between individuals, groups

or organizations, or non-conformance to requirements of a task, activity or process.” (Gardiner and Simons, 1992)

Dispute “A Disagreement in which opposing views are strongly held.” (Oxford

Dictionary) “A dispute can be said to exist when a claim or assertion made by one

party is rejected by the other party and that rejection is not accepted.” (Institute of Civil Engineering (ICE) Arbitration)

Conceptual Differences “Conflict” is a general term; it exists where there is an incompatibility of

interest. Conflict Can be;

Functional, natural and constructive: disagreement or arguments related to tasks, roles, functions or processes. Lead to “Constructive Discussion”.

Dysfunctional, unnatural and destructive: escalation of arguments to a dispute. “Conflict” can be managed to prevent escalating it to “Dispute”. Disputes require resolution. Dispute is associated with distinct justiciable issues. “Dispute” are paired with “Resolution” and “Conflict” is paired with

“Management”

Conflicts in Construction Conflicts seems to be very synonym with construction projects. The competitive nature of the construction industry and the

complexity of their agreements and contracts It starts with claims, like; request for payments, request for EOT,

Liquidated Damages, etc. Proceeded with rejection. Assertion on the rights. Conflicts are escalated to adversarial relationships, causing dispute. Disputes become endemic between the involved parties, threatening

their relationships.

Construction Dispute Causation

Contractual Related Issues

• Standard Contracts• Fuzzy statements • Force Majeure • Financial Issues• Dispute and Claim Clauses

Payment Related Issues

• Payments delay• Failure in payments• Payments for Unapproved work• Costs for change orders.

Time related Issue

• EOT (Extension of time• Liquidated damages

Construction Dispute CausationQuality Related Issues

•Defective construction• Incomplete work•Rework

Legal Related Issues

•Lack of knowledge of the local legal systems•Changes of laws•Conflicts of laws•Non-compliance with the law of Public Works and Housing

Culture related Issue

•Language problems•Cultural differences•Management styles•Communication issues

Others Related Issues

•Late instruction by the owner•Availability of information•Accessibility to construction site and utilities•Design related Issues (incomplete designs, changes of the site conditions, insufficient designs and constructability issues)

Discussion

What would happen if the contractor raised a claim to the owner demanding

remedies ??

Discussion

If you were the consultant engineer?What would you do?

Discussion

If the owner rejected the claim and the contractor was holding his right?What would the contractor do?

Discussion

Return to the Contract.Specifically “Claims & dispute

Resolution” Clauses

Dispute Resolution Methods

“Dispute resolution techniques are the procedures to settle the disputes

between the parties in a fair, feasible and acceptable way in the shortest

possible time”

Dispute Resolution Methods In the construction contracts, the dispute resolution clause

determines the guidelines of following the process managing the claims and the resolution of the anticipated Disputes.

In case of Disputes, the Dispute Resolution Clause will determine the method that will be used.

Most of construction contracts use the arbitration as DRM.

Dispute Resolution in History

In the past, if there was a dispute, the dispute would be settled at the informal meetings between the engineer and the contractor. “Shake hands basis”.

When the two parties reach the plateau of disagreement, they proceed the litigation process in order to decide for their issue.

litigation process is timely consuming, expensive procedure, and lack of the technical background of the adjudicators.

This raise the dissatisfaction with the litigation process.

Dispute Resolution in History The need for arbitrators, who had knowledge in the technical issues

in the field, was raised. The first arbitration clauses in contracts were manifested in 1915 by

the American Institute of Architects’ (AIA) standard contract forms. The American Arbitration Association (AAA) was founded in 1926 to

prompt the use of arbitration. Arbitration would probably be the earliest alternative dispute

resolution method. Due to congestion load on litigations, the policy of majority of courts

transfer the favor to arbitration to ease the settlement of the construction issues.

Dispute Resolution Methods The Common DRM are;

1. Litigation2. Arbitration3. Alternative Dispute Resolution Methods (ADR);

1. Negotiation 2. Mediation/conciliation 3. Dispute Boards 4. Expert Determination 5. Hybrid methods (Med-Arb)

Litigation One of the binding Dispute Resolution Methods. (parties can not seek

for a reversal)

It is a government run system that involve judges and courts.

After drawing up of the contract, issues, which cannot be resolved by the parties, can arise.

It starts one of the parties to file a lawsuit against the other party.

Litigation Judges are always concerning on the legal side of the issue. (THE

CONTRACT)

Judges don't have any technical backgrounds concerning technical problems.

The process of prehearing, discovery, testimony and examination of documents, hearing, handling of witnesses and disclosure phases are followed.

Such of approach is complex with restrict rules that vary from state to state as well as from country to country.

Litigation Long process (may take years to be solved by courts).

The disputing parties have no control on the process suffering the long and expensive process leading to dissatisfaction outcomes.

The expenses of this process is compensated by all parties.

The decision of the lawsuit may be not equitable.

Litigation is the last resort for settling the dispute and after the courts

Arbitration Arbitration is the most popular dispute resolution method in

Construction Industry.

Arbitration is a process, subjected by a statutory law where formal disputes are determined by a private tribunals.

Arbitration is a technique according to which the disputes of the parties are solved by the arbitrators who are authoritized as a result of a special agreement.

Arbitration

“An arbitrator is a private extraordinary judge between party and party, chosen by their mutual consent to determine controversies between them, and arbitrators are so called because they have an arbitrary

power; for if they observe the submission and keep within due bounds, their sentences are definite from which there lies no appeal”. Sir Robert

Raymond (1700s)

Arbitration The contractual agreements between the contracting parties should

stipulate the arbitration clauses. The Arbitration Clause should contain

number and characteristics of the panel arbitrators government language government law (according to the organization the arbitrators belong to) Location of the arbitration proceedings

The arbitrator shall have The Professional experiences in construction. (Engineer) Legal background. (attorney)

Arbitration Similar to litigation the decision is binding and enforceable by the

Law. The arbitration procedure is similar to the courts. Unlike litigation, parties can control the process of arbitration by

Selecting the arbitrator. Maintaining the control of the arbitration budget and time. Confidential.

Normally, the final decision of arbitration is given after 6 months of assigning the arbitrators.

It can be extended to 12 moths if notice of reversal is issued by one of the parties.

Arbitration Unlike the litigation, arbitration is considered as more cost effective

than litigation.

The allocation of the expenses of the process is to be decided by the arbitrator.

Arbitration ProcessSubmission

• notice of the dispute

• statement of dispute

• Arbitration selection• lists of potential arbitrators

• Selection from the panel

• Assigning arbitrators

Hearing

• Prehearing • Discovery • Testimony• Document examination

• Hearing• the parties and arbitrators meet in person

• arguments and evidence in support of the case

Decision & Award

• Decision of Arbitrator.

• Give a period not less than 60 days for reversals.

• Give final decision

• The arbitration expenses allocations

Alternative DRMs “Any method by which conflicts and disputes are resolved privately

and other than through litigation in the public courts” (Kovach, 2004). ADR provides binding and non-binding processes range from self-

deterministic of the contracting parties to settle their dispute to the involvement of a third party to decide for their issues.

The focus of ADR is to shift outside the adversarial nature of the litigation process.

Courts are tending to shift most of the construction disputes to alternative dispute resolution procedures prior to trials.

Alternative DRMs There are many of alternative dispute resolution methods including;

Structured negotiation, Mediation, Conciliation, Arbitration, Expert determination, Adjudication, Dispute review board (DRB), Dispute Adjudication Board (DAB), Mini-trials and Hybrid methods, known as tiered or stepped DRMs, such as mediation-

arbitration, negotiation-arbitration and conciliation- arbitration.

Advantages of Alternative DRMs1. Cost effective.2. In effective timely manner.3. Confidential method.4. Preservation of disputing parties’ relationship.5. Saving litigation expenses.6. The availability of qualified, equitable and neutral experts to hear the

complex matters.7. Methods that are useful to maintain the communications between the

disputing parties by facilitating the understanding of the issue on the each side of the dispute.

Comparison Between DRMDRMs/

Characteristics Litigation Arbitration

Negotiation

Mediation

Adjudication DAB

Expert Determinat

ion Parties involved in the decision

Judges andcourts Arbitrators Disputants

Mediators and

DisputantsAdjudicator Panel of

experts An expert

Control level of the parties N/A Minor Full Full Average Average Minor

Common law statue basis Yes Yes No No Yes Yes Yes

Frequency used Common Common Very

common Common Common Common Fairly common

Decision enforceability Final and binding Final and

binding Non-binding Non-bindingBinding if written in contract

both Final and binding

Privacy Compromising Confidential Confidential Confidential Confidential Confidential Confidential

Relative duration Very long Long dependent Short Relatively short Short Short

Relative cost Very expensive expensive Least expensive

Less expensive Average Average Less expensive

Key pointsTechnical

Knowledge compromised

Technicalknowledge notcompromised

Amicable settlement

Solution may not

follow contract

Decision can beappealed

knowledgeable of

project

Preferred incomplex technical

issues

Rational Process of Dispute Resolution

Avoiding Stage:

• Partnering• Alliance

• Risk Management

Negotiation Stage:

• Structured negotiation• Direct negotiation

Facilitated Resolution Stage:

• Mediation• Conciliation

• Dispute Review Board• Dispute Resolution Advisor

• Mini-trials

Binding Resolution Stage:

• Arbitration• Adjudication

• Dispute Adjudication Board• Dispute Adjudication Board

• Expert Determination• Litigation

Escalation of hostility,

cost and time

Forensic Engineering

“Forensic Engineering is the art and science of professional practice of those qualified to

serve as engineering experts in matters before courts of law or in arbitration proceedings”

(Marvin M. Specter “President of the National Academy of Forensic Engineers (NAFE)”, 1987)

Forensic Engineering It is the application of engineering principals and methodologies to

answer questions of fact that may have legal consequences.

These questions of facts are usually associated with; Accidents, Crimes, Catastrophic events, Degradation of property and Various types of failures.

Forensic Engineering Forensic engineering may include;

Investigation of the physical or technical causes of accidents Sources of claims and litigation, preparation of Forensic engineering reports, Providing Evidences and witnesses at hearings and trials in administrative

or judicial proceedings, Rendition of advisory opinions to assist the resolution of disputes affecting

life or property.

Forensic Engineer The forensic engineer is a professional engineer who deals with the

engineering aspects of legal problems. Forensic engineer works for attorneys representing plaintiffs or

defendants, who may be; individual parties corporations, governmental agencies. Consultants A team from different disciplines.

Qualifications of Forensic Engineer

Forensic

Engineer

Technical Competency

Knowledge of Legal

Procedures

Detective Skills

Oral and Written

Communication Skills

Other Skills (Photographic skills, imaging

experts or human

performance specialists)

Personality Characteristics (High ethical

and professional principles, Flexibility,

confidence, work effectively

with others

Forensic Engineering, Science or both? Although this definition is applied to forensic engineering, it should be

acknowledged that this field is not only practiced by engineers but also by other specialists involved with areas such as firefighting systems specialist, corrosions specialist, mechanical specialists etc.

Forensic engineers work with team of specialist to deeply investigate the problem of facts.

The fundamental questions of fact

1. What is the failure or conditions of concern?2. What is the magnitude and extent of the

failure?3. When did it occur (if this determination is

needed and desired)?4. Why did it occur?

The fundamental questions of fact The last question is complex, and this causation question must often

be answered at multiple levels. Example roof failure

causation higher level ( wind ) causation lower level ( design of wind resistance is improper design) lowest causation ( faulty installations)

The issue finding the Ultimate “Root Cause” of failure is the main concern the forensic engineering.

Root Cause and Topical Cause It is common to arrive at a topical conclusion regarding the cause of

failure (eg. Wind).

Which is not the root cause of failures (e.g. faulty installation).

The root cause identification requires analysis based on detailed site inspection information and subsequent analysis and review of literature, pertinent codes and standards, and other information such as the obtained from interview.

Root Cause and Topical Cause

Often, whether in claims resolution discussions or in litigation, this differentiation between topical cause and root cause of failure is at the core of arguments between opposing parties involved in a dispute.

The forensic engineer shall gather every evidence and utilized every possible tools that make him closer to root cause.

Why Forensic Engineering?

Two main Reasons why forensic professional are needed are typically distilled down to; The desire by one or more parties to determine why a failure or issue

occurred. The desire to seek this information usually involves determining

responsible parties so costs associated with the failure can be properly allocated.

Parties who need Forensic Determinations

The two most likely categories of parties interested in employing forensic professionals to make these determinations are associated with; The insurance industry Legal communities.

Other parties, such as building owners, may have an interest in determining these answers, but they are generally unwilling to incur in costs or do not have the resources to employ such professionals.

Insurance Companies Desire

Determine root cause failures and resulting responsible parties. Determine if they have coverage of a submitted claim based on root

cause failures and timing failure. Quantify the extent of damages. Determine if other parties may have coverage for a submitted claim.

Legal Community Desire

Determine root cause failures and resulting responsible parties. Quantify the extent of damages. Quantify necessary repairs. Provide expert witness service for pending / actual litigations. Determine if claims have been appropriately addressed by the

insurance providers.

Influence on Improved Practices One of the more rewarding aspects of forensic engineering practice is

the opportunity to make recommendations on the basis of such an investigation.

Forensic engineers have a role in disseminating information to design professionals to improve procedures and products so that failures or accidents are not repeated.

Forensic engineers can have an impact on improved engineering design practices.

Standard methodology for forensic inspections

It is important for efficiently and effectively reaching cause and origin conclusions.

Efficiently is not only the desire to minimize costs, but also to minimize time needed.

Effectively not includes not only the desire to efficiently use of money and time resources, but to do it in a way that most likely will result in the ability to actually make a determination of the cause and origin for specific claim.

Such of an approach to reach an effective and efficient determination, a consistent methodology that can be complied with the legal process is needed.

Standard methodology for forensic inspections

Such of an approach to reach an effective and efficient determination, a consistent methodology that can be complied with the legal process is needed.

The key steps to forensic inspection process are1. Pre-inspection file preparation2. Site inspection 3. Collection of evidences 4. Post-inspections written report.

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Case Study (Column jacketing) https://www.youtube.com/watch?v=aXP4oNzi6YM

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https://www.youtube.com/watch?v=b4sVzPktjn0

Case study https://www.youtube.com/watch?v=hNStpyFPDU4 (mortar) https://www.youtube.com/watch?v=tdudT_BFHTA (water proofing ) https://www.youtube.com/watch?v=9nuky8tY2To