Dispute resolution and claims management are not two sides of the same coin but alternatives sharing the same aim, namely, resolution of matters of disagreement.
The actual difference is that whereas contract disputes resolution seeks to bring the parties together to reach an amicable settlement, the need for claim management arises when one of the parties believes that an injustice has been done and the point of amicable settlement has passed with recourse to adjudication, arbitration or the legal system inevitable. At one time arbitration was the automatic choice for protagonists wishing to avoid the high costs of resorting to the law.
In recent years, starting with the Latham Report and extended by the Woolfe Report, there has been a drive to achieve settlement of differences without recourse to the courts or arbitration. In fact, it is now invariably a requirement that matters are referred to experts before the courts will accept the case. As a result, most contracts now incorporate clauses outlining a dispute resolution requirement. This often involves a stepped process where disagreements are progressed from site level to higher levels of management until it reaches board level.
Even after the construction dispute has been the subject of MD or CEO review, there is no guarantee that it will be resolved. Certain contracts require the matter to be referred to third party contract dispute resolution. Others are silent on the next step, in which case the issue invariably becomes the basis for a construction claim.
Benefiting from experience gained from all sides of the industry and from having worked on various forms of contracts, in many different countries, McMillan Associates has the experience in construction claims and disputes resolution, together with the contractual and outstanding technical knowledge to deal with construction disputes expertly and efficiently. Whether it is by dispute resolution or as a full scale contract claim, our well established approach ensures that each situation is handled in a totally professional manner.
We appreciate that the probability of successful dispute resolution relies, to a great extent, on speed. The sooner a construction dispute is reviewed the better the chances of an equitable if not amicable settlement. It also relies heavily on the confidence the Parties have in the mediator. Confidence that is gained from knowing the person entrusted with the decision has a broad based background and a thorough understanding of why and how disputes arise. Something that can only be gained through site based experience. The ability to assimilate complex problems in order to produce effective construction dispute resolution must also be apparent to the parties.
Whilst construction dispute resolution seeks to bring the parties together and is therefore, more relaxed than arbitrations or court hearings there is still the absolute requirement for a structured approach. The aim is to resolve differences and provide a suitable basis for further co-operation. Openness and clarity of actions are paramount.