I dispute that!

Last month’s piece on dispute resolution (‘Let’s settle this’, CM, January) was an excellent article explaining some important virtues of each of the three main options available for positive determination of construction disputes. However, there are three additional issues that I think should have been included in your assessment.

The general level of understanding of contractual and legal entitlements within the industry is incredibly limited. The naivety with which disputes are handled at the ‘work face’ and the general reluctance of managers to produce timely information, evidence and notices does much to fuel the developing dispute in its infancy, on a nest bed of highly infectious misunderstanding.

Secondly, the article appears to place a general emphasis on monetary values as being a guide to which of the three methods for resolution should be adopted. This is misleading in that there will be contractual issues in most cases limiting the options to adjudication or arbitration. Between this option it is also misleading as high money values may be attributed to single issue disputes relatively simple to resolve, whereas relatively small value disputes may have multiple and complicated issues.

Where appropriate, I spend time with my clients recommending the short track 100-day arbitrations as set out by the Society of Construction Arbitrators in favour of adjudication. Chris Dancaster's report highlights the significant advantages of doing so at the expense of a short delay in obtaining the resolve of possibly less than seven weeks.

My third point is that there is another significant advantage with 100-day arbitration in that party costs in arbitration are usually recoverable in favour of the winning party and not just the cost of the decision maker as it is with adjudication. This can have a very sobering effect on a stubborn party holding on to its assertions when it is reasonably clear that any decision will go against him.

Parties facing real costs with slim or non-existent cases are less likely to do so if they are mindful of the mounting cost of being stubborn.