Alternative Dispute Resolution
by Ken Fredrickson
It is a fact of construction life that there will be disagreements on a project. Whether it be contract or design interpretation, site conditions, failure to deliver in a timely manner or any one of a dozen common issues that appear on a daily basis, we need to learn how to deal with them. For a long time, we operated with two resolution approaches – settle amicably (or at least civilly) or proceed to some sort of quasi-litigious process. While settling amicably was desirable, proceeding to more litigious solutions tended not to contribute to a good working relationship if the project was still in progress, or if resolution was delayed until the end of the project, tended to contribute to a worsening relationship as the work continued.
Partnering evolved as an approach that encouraged amicable settlement. It does not change contract processes but attempts to identify informal paths through which disagreements can either be resolved or passed on to a different group of individuals that may be able to reach an amicable resolution.
While partnering has been helpful in reducing the number of unresolved disputes, some disputes will remain unresolved and this has encouraged the creation of a range of methods to resolve conflict – more complex than partnering but less expensive than litigation. Sometimes getting independent people involved in the dispute resolution process can help. From facilitating discussions to reach a solution to bringing in experts to make recommendations, there are a range of alternatives that may help achieve agreement without damaging the working relationship.
BergCM runs their projects with the intent of achieving timely, fair, equitable and amicable settlements that allow the work to continue as intended. We recognize that sometimes negotiations and partnering do not achieve the desired result and are able to assist clients with additional tools from Facilitation through assembling Joint Experts to get issues resolved.