CONSTRUCTION JOURNAL

Conflict Avoidance Process helps stop disputes before they happen

Contractual disputes are an ever-growing threat to construction projects. But early intervention can prevent issues escalating into costly drawn-out affairs

Author:

  • Len Bunton, FRICS
  • Janey Milligan

07 April 2022

Despite being considered an essential industry, the construction and infrastructure sector still experienced its fair share of difficulties as a result of the COVID-19 pandemic.

Supply chain interruptions and the increased cost of materials, as well as other issues such as adapting to remote working, implementing new and changing health and safety measures had a ripple effect, and new construction work experienced a record fall in 2020.

However, a positive shift also occurred; the industry has experienced a change in mindset to a more collaborative, cooperative approach to the procurement and delivery of construction and engineering projects in the UK, and this is supported by the UK, Scottish and Welsh Governments and the NI Executive.

A contributing factor in this change has been the development and implementation of the RICS Conflict Avoidance Process (CAP).

What is the Conflict Avoidance Process?

CAP is an early intervention vehicle that encourages the resolution of emerging issues and prevents them from escalating into disputes.

The process is managed by a CAP professional who is a technical expert on the subject at hand, as well as an experienced dispute resolver.

The CAP professional may take an inquisitorial approach, visiting the site, holding meetings with both parties, and requesting sight of particular documents, and whatever else they consider necessary to inform their understanding of the dispute.

The CAP professional will issue within 28 days (unless otherwise agreed with the parties) a non-binding written recommendation for how parties should move forward and resolve the dispute.

It is a swift, efficient process conducted by an industry expert to help move the project forward without further delay. It then allows those involved to focus on delivery of the project.

CAP is now tried and tested following numerous pioneering projects carried out by Transport for London (TfL) and RICS over the past few years. It has led to the resolution of various high-value disputes on live, large-scale engineering projects, resulting in significant savings and a reduction in legal and consultancy costs.

Key benefits of CAP

  • It preserves working relationships. By enabling parties to identify and dispose of emerging issues early, it helps to mitigate risk and protect both commercial relationships and business reputations.

  • CAP professionals are industry experts. They are credible and experienced in the subject matter on which the parties have a disagreement.

  • There is no upfront cost as you don't pay if you don't use it.

  • The CAP professional's recommendations are not binding, unless both parties agree otherwise.

  • Recommendations are fully reasoned out and give parties a clear indication as to what the outcome might be if the disagreement ends up being adjudicated, arbitrated or litigated.

Conflict Avoidance Pledge

The Conflict Avoidance Pledge was developed by several of the UK's leading professional bodies for construction and engineering. It is a voluntary commitment by organisations to proactively avoid and manage disputes by using early intervention procedures.

By signing the Conflict Avoidance Pledge, Pledge organisations will integrate the principles of cooperation and conflict avoidance into the way they conduct business.

Over 250 procuring authorities and construction companies from across the supply chain have signed the Pledge, indicating their commitment to work collaboratively to avoid the time, costs and reputational damage that can be caused by unresolved disputes.

Support for CAP and a commitment to embedding conflict avoidance mechanisms into projects is gaining traction across the UK. The Conflict Avoidance Coalition Steering Group, which is made up of the leading professional bodies for construction and engineering (including RICS, RIBA, ICE, TfL, Chartered Institution of Arbitration, Chartered Institute of Civil Engineering Surveyors, Network Rail, and Dispute Resolution Board Foundation) continues to work together to promote conflict avoidance and the Pledge across the construction industry. Support for the principles of collaborative working has been received from the Department of Business, Energy and Industrial Strategy, the CLC, the CICV Forum in Scotland, and many more.

In Scotland, a Working Group is driving the campaign forward by bringing together a raft of procuring authorities, including the Scottish Futures Trust and NHS Scotland, who have indicated their commitment to conflict avoidance by signing the Pledge and writing CAP into their contracts. There is also ongoing engagement with the Small Business Commissioner and key government regulators regarding the implementation of CAP into major projects.

In conjunction with RICS, a number of CAP Ambassadors are joining the initiative to advocate the benefits of CAP and to encourage more organisations to sign the Pledge.

'Over 250 procuring authorities and construction companies from across the supply chain have signed the Pledge'

How to get involved

Becoming a Pledge signatory will signify your commitment to working collaboratively to ensuring projects are delivered on time, and on budget. It will also indicate to others that you see value in maintaining good business relationships and dealing with disputes early and amicably.

Another recent development has been the formation of the Conflict Avoidance Community on LinkedIn and to date 370 organisations have joined the Community to share experiences and to input into developing a conflict avoidance culture.

'For many years, disputes have delayed too many projects and damaged too many commercial relationships and brands, often at immense financial costs.

'The Conflict Avoidance Pledge and tried and tested procedures such as CAP, which can be highly effective at dealing with emerging problems early and cheaply, are simply common sense.

It is encouraging to see more and more people and businesses embrace the concept of conflict avoidance and take practical steps to implement CAP into their contractual arrangements'. – Martin Burns, head of ADR research and development, RICS

Len Bunton FRICS is a mediator and leads Bunton Consulting

Contact Len: Email

For further information regarding the Conflict Avoidance Pledge, please contact capledge@rics.org

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