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Viewpoint - Invest to get the benefits of foresight

AGENDA - Early, painstaking planning can help avoid disputes, writes Roger Trett

SOME people might say that avoiding conflict in a risk-prone and uncertain industry like construction is about as easy as crossing a motorway blindfolded.

It certainly isn't easy, but, while I generally spend my time trying to resolve disputes subsequent to contract completion, mainly through litigation, arbitration, mediation and latterly adjudication, resorting to these methods predominantly arises because lack of sufficient forethought was given to the project.

The ethos of actively working to avoid disputes, while given lip service, is still a relatively new idea in the construction business.

One of the biggest problems is that many contracts are badly planned from the outset and become worse as the project progresses. This is mainly due to the failure of the parties involved to take ownership of the various adverse events that inevitably beset projects.

This lack of ownership can be by any of the organisations involved and can arise for various reasons, including a desire to maintain the impression that a project is going to be completed on time and to budget or perhaps for retaining the confidence of the senior management team, who may give the impression that they do not want to hear bad news.

If dispute avoidance were to be given proper consideration at the outset of a project, any expenditure involved to engage external, independent opinion as to the feasibility of the programme could well pay dividends. Providing an objective review as the project proceeds can bring further benefits.

The independent reviewer should carry out ongoing project reviews from the outset of a project and during its life cycle. The benefit is that the independent reviewer does not find himself, or herself, under the same pressure as internal team members.

When this type of work has been carried out ? generally under a typical brief to help assist the client's own planning team with dispute and claims avoidance measures and with proactive control of the project ? it is entirely feasible to anticipate and steer clear of many problems before they arise.

It is more about brainpower minimising expenditure than slugging it out with litigation and other blunt instruments trying to recover losses after the event.

But the independent reviewer must work closely with the site team to deal with issues as they occur and anticipate others that may arise.

Painstaking planning generally allows the contractor's team to have clear goals in place, against which it can measure performance. It also allows the contractor to monitor day-to-day issues which may affect margins, and promotes an extra level of confidence in the team.

Achieving client buy-in to the idea of dispute avoidance involves a high degree of trust and confidence on their part, as they are investing in something that is still quite unusual in our industry. The proactive client is someone who has the vision to avoid additional project cost rather than someone who makes a claim to recover programme or cost overruns. An initial investment is required to employ external consultants at the beginning of a project, but it can reap rewards and it highlights those individuals who do have foresight in their continual challenge to meet expectations.

If the parties involved in a project are willing to invest in such a positive attitude to projects, dispute avoidance is a distinct possibility.

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