• A Decision Support Tool for the Valuation of Variations on Civil Engineering Projects

      Sutrisna, Monty; Buckley, Kevan; Potts, Keith F.; Proverbs, David G. (RICS (Royal Institute of Chartered Surveyors), 2005)
      The valuation of variations has been recognised as a prime cause of conflict and dispute in construction management. Such disputes often concern the prices and/or rates to be applied to the varied works. Previous research has identified the subjectivity of the decision-maker in interpreting the valuation rules to be the major problem, particularly with regard to defining the work conditions and/or characteristics during a variation event. Findings of a survey, conducted to elicit the views and perceptions of experienced practitioners towards interpreting the valuation rules are presented. The development of a decision-making tool based on a robust framework for valuing variations in civil engineering projects is described. The tool was developed by analysing changes in various decision attributes. The result of the changes was then mapped to relevant sets developed using fuzzy-logic principles. Various operators were used to perform the fuzzy-aggregation operation. The modelling technique was demonstrated to be reliable in replicating the decision-making process performed by experienced practitioners. As such is considered a suitable aid for decision-making involved in valuing variations on civil engineering works. The results of the analysis reported here have suggested the fuzzy-logic as an appropriate tool to model human decision-making, particularly in valuing variations on civil engineering works. This is considered an essential progress of the current study in modelling human decision-making process, particularly since there are so many unknown aspects associated with such a process. The modelling technique successfully developed here is then used as the main algorithm for decision-making in the subsequently developed Knowledge Based System (KBS) which is intended to assist practitioners minimise conflict and dispute arising from the valuation of variations.
    • Commercial and Construction ADR: Lawyers’ Attitudes and Experience

      Brooker, Penny; Lavers, Anthony (Sweet & Maxwell, 2001)
      Findings of large scale survey of solicitors and barristers specialising in commercial and construction fields on their familiarity with ADR, particularly mediation and their perception of its usefulness and effectiveness.
    • Construction Lawyers' Attitude and Experience with ADR

      Brooker, Penny (Sweet & Maxwell, 2002)
      Survey of construction lawyers on their experiences of ADR, particularly mediation, including mediation settlement rates, categories of disputes and parties involved in mediation, and factors involved in mediation failure or rejection.
    • Developments in the United Kingdom Dispute Resolution Process

      Akintoye, Akintola; Renukappa, Suresh; Lal, Hamish (ASCE, 2014-07-11)
      It is generally recognized that the U.K. construction industry is associated with low profit, delay in payments, cash flow concerns, short-term relationships compared with other industries, and high levels of business failure. In particular, claims and disputes have proliferated in the industry largely due to unfair payment practices. Therefore, to encourage a swifter and more economic method of resolving construction disputes by way of adjudication, the U.K. Housing Grants, Construction and Regeneration Act 1996 (HGCRA) came into force on October 1st, 2011in England andWales, and November 1st, 2011 in Scotland. This study presents the HGCRA 1996 Act—highlighting its strengths and weaknesses—along with the new 2009 Construction Act. The study additionally presents awareness of the new Act, key reasons for amending the HGCRA 1996 Act, and the impact of key changes in the Act on the dispute resolution process. The paper concludes that the new Act is perceived as being more effective at improving cash flow in the construction supply chain and is expected to encourage parties to resolve disputes by adjudication—but it will have to overcome the historical fact that integration of such proposed changes in construction may be a complex issue.
    • Early perceptions of allowing adjudication of oral contracts

      Charlson, Jennifer; Baldwin, Robert; Harrison, Jamie (Emerald, 2014-10-07)
      The purpose of this paper is to consider the implications of the admission of oral contracts to statutory adjudication proceedings. A major criticism of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA 1996”) was that Section 107 required contracts to be “in writing” for the parties to be able to use statutory adjudication. In response, the Local Democracy, Economic Development and Construction Act 2009 repealed Section 107 of the HGCRA 1996. This paper considers the implications of the admission of oral contracts to statutory adjudication proceedings, whereby adjudicators’ may now have to determine the exact nature of oral agreements. The critical literature review has highlighted that there is a perceived risk that, by allowing oral contracts to be decided through adjudication, there could be an increased risk of injustice (as the adjudicator may have to decide oral testimony about contract formation). Adjudicators may now have to determine the exact nature of oral agreements. The critical literature review has highlighted that there is a perceived risk that by allowing oral contracts to be decided through adjudication there could be an increased risk of injustice (as the adjudicator may have to decide oral testimony about contract formation).
    • Insolvency and resolution of construction contract disputes by adjudication in the UK construction industry

      Ndekugri, Issaka E.; Russell, Victoria (Taylor & Francis, 2005)
      The Housing Grants, Construction and Regeneration Act 1996 provides that a party to a construction contract has a right, at any time, to refer any dispute under the contract for adjudication. This resolution method requires a neutral third party, the adjudicator, to determine the dispute within 28 days after receipt of the referral regardless of the complexity of the issues in dispute. The decision is to be implemented even if it is palpably wrong in fact or law. A key assumption of this legislation is that any mistakes made by an adjudicator can be corrected by reference of the same to litigation or arbitration. It is a major concern that restoration of the parties to their correct positions may become impossible where, after implementation of an adjudicator's mistaken decision, the beneficiary of the decision becomes insolvent. This article is a critical review of all the cases in which the courts have dealt with the effect of insolvency on the right to adjudicate and the enforceability of adjudicators' decisions. Two main conclusions are derived from the review. First, the court may decline to enforce an adjudicator's payment decision where there is strong evidence that, on account of formal insolvency, the payee would be unable to make repayment if final resolution of the dispute necessitates it. Second, the only exception so far to the general right to refer to adjudication arises where the other party is in administration. (Taylor & Francis)
    • Mediation Outcomes: Lawyers’ Experience with Mediation

      Brooker, Penny; Lavers, Anthony (Pepperdine University School of Law, Malibu, CA, 2005)
      This paper reports on the final phase of a three-year study into the role of lawyers in the development of Alternative Dispute Resolution (ADR) following the implementation of the Civil Procedure Rules in 1999 and draws comparisons between US and Canadian studies. The paper centres on the use of mediation, which is recognised as the pre-eminent ADR process in the UK. Data are analysed from 30 interviews with specialist commercial and construction-related lawyers who have utilised mediation in the dispute resolution process. Interviewees were selected from respondents to a national survey of lawyers specialising in commercial and construction-related practice. Whereas reaching settlement is typically regarded as the measure of success, this research focuses on other "mediation outcomes" experienced by solicitors and barristers, the majority of whom are repeat-users of the process. The data reveal that achieving settlement in a timely and cost-effective manner is among the chief advantages mediation has over litigation, but a number of other benefits can make the process an eligible option in dispute resolution. In particular, the process of mediation allows the parties to focus on or narrow the issues in dispute. Lawyer-interviewees also report tactical advantages from engaging in mediation. These range from providing the opportunity to examine the strengths and weaknesses of the case to testing witnesses and evidence. The data suggest lawyers are developing new practices in mediation, such as proposing the process in order to provide proof to the courts of willingness to compromise or participating in mediation in order to send messages to the opposition. Mediator-interviewees report a trend in mediation where cases are more difficult to settle and the participants more cognisant of mediation tactics.
    • Negotiating Responsibility for Project Change in Collaborative Working Environments

      Ndekugri, Issaka E.; Cheung, S. O. (Lexington, VA: Washington & Lee Law School, 2005)
      Disputes from project cost escalation and delays have exercised the attention of construction management researchers for a long time. Several developments suggest research towards development of conceptual and practical tools for negotiating away informal differences before they escalate into formal disputes requiring litigation or arbitration. Of these developments, the most pressing drive for negotiation is the increased use of procurement strategies requiring the stakeholders to work in collaboration. This article reviews the literature on negotiation of variations and claims. The findings of this review are that: (i) there is very little literature on the negotiation of variations and claims which resonates with general negotiation theories; and (ii) there is a need for research on negotiations models and tools which will reflect the volume of information scattered across different documents prepared for purposes other than negotiation and the multiplicity of relevant issues and stakeholders.
    • Resolution of construction disputes arising from major infrastructure projects in Developing Countries – case study of Ghana

      Ndekugri, Issaka; Mante, Joseph (University of Wolverhampton, 2014)
      This study undertook a critical examination of developing countries’ experiences of infrastructure-related construction dispute resolution using Ghana as a case study. It investigated the dispute resolution processes and procedures which parties to infrastructure construction disputes employed to address such disputes. To gain a better understanding of the dispute resolution processes, the study also assessed the legal framework for procurement and contract formation and other contextual issues which influenced parties’ dispute resolution choices. Consequently, strategies for efficient and effective dispute resolution were developed. The main rationale for the study was the need for effective and efficient dispute resolution processes in the context of infrastructure projects in developing countries. The literature indicated that disputes often occurred on such projects in developing countries that were resolved at great cost mainly by arbitral tribunals in the developed world. However, there was limited information on the extent to which other dispute resolution mechanisms were utilised prior to resort to international arbitration. The study adopted a qualitative research approach informed by the interpretivist philosophical paradigm. Data was collected from fifty-six interviewees from the State as the Employer and foreign contractors through semi-structured interviews and documents and analysed using qualitative data analysis procedures associated with grounded theory research such as coding, constant comparison, memoing and diagramming, and doctrinal legal analysis. It was found that engineer’s determination, negotiation and international arbitration were the most used dispute resolution mechanisms. Others such as mediation were rarely used. The dispute resolution processes were characterised by high cost, low satisfaction with outcomes and negative effect on relationships. It was also found that the extant dispute resolution processes were the product of the nature of the parties, the context in which they operated and their responses to the context. Factors such as lack of coordination among the Employer’s sub-units, human resource constraints and political interference had varying negative impacts on dispute occurrence, dispute resolution system design and the dispute resolution processes. To deal with these challenges and achieve efficient and effective dispute resolution processes, four sets of remedial strategies (condensed into a model called the Dispute Resolution Efficiency Cycle (DREC)) were proposed. The study has provided empirical evidence which has addressed some of the gaps identified in the literature on issues such as absence of information on pre-international arbitration dispute processes. The study has also highlighted the impact of context and dispute system design on dispute resolution. Contributions to practice included diagnosing challenges with the extant dispute resolution processes and proposing possible remedial strategies.
    • The Role of the Adjudicator Nominating Bodies in Adjudication under Construction Contracts

      Levy, L.; Ndekugri, Issaka E. (Lloyds of London Press Ltd., 2003)
      Outlines research on Adjudicator Nominating Bodies (ANBs), based on a review of literature, analysis of documents supplied by the ANBs, questionnaires and interviews. Looks at the organisational framework of ANBs, their registration and appointment procedures, the skills required of adjudicators and the monitoring of adjudicators' performance. Includes tables and a graph detailing the results.