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1
Alternate Dispute Resolution and Beyond
May 23, 2013
Stephen Revay, FSCS
Agenda
Warning signs
Email out of control
ADR – During Construction
ADR ‐ Post Construction
Conclusions
2
Warning Signs
Owners who:
have unrealistic expectations
fail to properly develop project
cut corners on investigations
and design
inappropriately shift risks to contractor
3
Realistic Schedule
Project CompletionEngineering
Overlap
Construction
DELAY
Increased overlap
Failure to move start and end dates notwithstanding initial delays causes unrealistic schedule
Fast TrackFast Track
4
Fast TrackFast Track
&
Hard money
&
Hard moneyExcellent source of business for claims consultants
Warning Signs
Engineers who:
pass on design responsibilities to
Contractors
agrees to unrealistic expectations
have vested interest in disputes
produce ambiguous or conflicting
documents
5
"The root cause of these problems is poor quality engineering and subpar
site management. At Fort Hills we are putting most of the engineering work outside of the overstretched Alberta
market and we are assembling a stronger owners team."
Petro Canada CEO Ron Brenneman
Reporting on $1.9 Billion overrun RCP Edmonton
Calgary Herald July 25, 2008
Warning Signs
Contractors can make the situation worse if they:
don’t satisfy notice provisions
cut corners to offset bid deficiencies
abuse subcontractors
don’t read the contract or assume it will
not be enforced
fail to keep adequate project records
don’t document claims properly
fail to develop and update schedules
6
LessonsLearnt
Repeated
ARTICLESTOREADNOTICE PROVISION
CHANGES/EXTRAS
DISPUTES
AUTHORITY
SOIL SITE CONDITIONS
DELAY
PAYMENT
7
R T F C
Words of Wisdom
“ Education is what you get
when you read the fine print
…
...experience is what you get
when you don’t. ”
8
Email: Getting in Control
http://emailcharter.org
When do we use E‐mail?79% checked email in the bathroom
77% while driving
11% while engaged in intimate behaviour
41% while their commercial plane was in
the air
94% during work nights or weekends
96% while on vacation
* Taken from “Mobile Messaging Marketing Trends,”
9
A. Barbour, Louder Than Words: Nonverbal Communication,
Communication Elements
Electronic Media Discovery (EMD)
Hard Drives
Text Messages E-mail MessagesVoice Mail Laptops, Tablets & Desktops
CDs & DVDsMemory Sticks Servers
10
ADR ‐ During Construction
Dispute Review Board (American)
NEC Contract (Great Britain)
Project Mediator (Canadian)
ARBITER DESIGN
CONSULTANT
11
Fight each other
or be PROACTIVE
Innovative use ofExpert Opinions
Productivity and
Delay claims
12
Options
• Each party engages claims consultant
• Each party diverts project people to perform analysis
• Two parties engage independent to provide objective basis
Proposed Best Alternative
The appointment of an impartial independent claims consultant to offer:
Unbiased advice and decisions
Assist in negotiation
Conduct forensic analysis at half the cost to each party
13
Forensic Analysis
Initiation of Process
Fact Finding
Draft Report
Final Report
Initiation of Process
• Differences with regards to
delay / productivity
• One termination dispute
• Generally speaking not scope
issues
14
Fact Finding
Access to documents from all parties;
Access to project people from all parties;
Better results less cost;
Opportunity to discuss weakness
confidentially;
Can involve legal counsel from each party.
Draft ReportSame Report to Each Party
Issued with the expectation that it will
be challenged
Each party has input into final result
Manage expectations regarding outcome
On occasion settlement reached before
final is submitted
15
Final Report
Parties have contributed to final
result
Legitimate interests have been
considered
Most economic alternative
Based on objective criteria
Advantages ‐ Benefits
Early attention
Site personnel remain focused
All costs known before
completion
No bias or personnel agenda
16
Unfounded Criticisms
increases project costs
creates disputes
inappropriate for construction
POST
CONSTRUCTION
17
RESOLUTION OF CLAIMSRESOLUTION OF CLAIMSNEGOTIATION
QUASI‐MINI‐TRIAL
DISPUTE REVIEW BOARDS
MEDIATION
ARBITRATION
LITIGATION
Electronic ADR
THE REALITY BEHIND SETTLING CLAIMS
Most construction claims are settled on-site [direct negotiations]
Negotiation is the preferred resolution method
Why do alternative dispute resolution methods exist?
These methods are an attempt at the next level of resolving outstanding issues
18
“A party to a dispute, particularly if there is an arbitration, will learn these three lessons (often too late):
1. The importance of records
2. The importance of records, and
3. The importance of records”Abrahamson, M.W.
Engineering Law and the ICE Contracts (4th edn, 1985)
19
“Documentation is a tool that most contractors do not use effectively. Good documentation of the events leading to and supporting a contention that a variation occurred can mean the difference between settling a valuation there and then, and waiting some years to re‐present the argument before a judge or arbitrator.”
Pickavance K. Delay and Disruption in Construction Contracts, 1997
Non Adversarial Communication
claims are about
money not people
20
What is being said ‐ What is happening
Owners say
We want to know early on when there are problems
Contractors say
Owners become defensive and more rigid with no give
and take ‐
becomes war zone
DETERMINING YOUR BATNA
Evaluate Damages – Cause and effect
Consulting with Legal Services to
evaluate the litigation risk value
legal exposure risk percentage
More than opinion do your research
21
KNOW YOUR BATNA
Best Alternative To a Negotiated Agreement
Before Negotiation , one should know His/Her BATNA
to weigh offers and counteroffers that PM will receive
during negotiations
to protect a PM against reaching an agreement that
possibly should have been rejected
QUASI‐MINI‐TRIAL
RESPECTIVE PRINCIPALS
OR
COURT SANCTIONED
22
MEDIATIONMEDIATION
VOLUNTARY
NON‐BINDING
FACILITATED NEGOTIATION
Why Mediate Cost
Speed
Control
Informal
Separating people from the problem
Preserving Relationships
23
Consider Mediation
Parties are willing to meet and settle
Parties want a flexible and informal process
Parties have an interest in maintaining a
relationship
Parties wish to keep the matter private
ARBITRATIONIS THE OLDEST FORMOF DISPUTE RESOLUTIONGOING BACK TO THE
ROMAN EMPIRE
ARBITRATIONIS THE OLDEST FORMOF DISPUTE RESOLUTIONGOING BACK TO THE
ROMAN EMPIRE
24
ARBITRATIONARBITRATION
BINDING
1 OR 3 ARBITRATORS
SELECTION OF NOMINEES
Survey of 1,000 US firms
Price Waterhouse
Cornell University
The Foundation for the Prevention and Early
Resolution of Conflict (PERC)
25
Arbitration
the process 69% likely to use
31% unlikely to use
79% have used
Mediation
84% likely to use in the future
17% unlikely to use in the future
88% have used the process
26
“It has been said that thegreatest lesson the litigationprocess offers disputants isthat, in comparison, it makes allother forms of resolution quiteattractive.”
Claim: Sub vs. GC $1.75MGC vs. Owner $1.35MOwner vs. GC $5.00M
Result: After 99 days of discovery and 132 days of trial, almost six years after substantial completion of the project:
SO YOU THINK YOU WANT TO CLAIM?
27
SO YOU THINK YOU WANT TO CLAIM?
Sub got $1.1M, but incurred $1.2M in legal costs
GC got $0.9M, but had to pay $300K to the Sub, plus $1.8M in legal costs
The Owner had to pay a total judgment of $1.7M, had its counterclaim dismissed, and incurred $1.1M in legal costs
Foundation Company of Canada v. United Grain Growers, BC Supreme Court, 1995
99 days of discovery
37,000 pages of exhibits
132 days of trial
decision 330 pages 6 years after completion
$4 million on legal fees; total win
approximately half that amount
28
Online Dispute Resolution
• Can be used to manage process
• Can be used to reach settlement
• Akin to shopping on Ebay
• Questionable for construction industry
29
ADVISORS
Lawyers / Claim Consultants
Don’t handcuff ‐ do manage
Not a poker game
Beware of advisors who are
in it for the game or the fees
and not the results