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Disputes: thinking up new procedural solutions by the day All of us are instinctively aware that there are many ways of resolving disputes. However, the other day I listened to a talk by Neville Tait. Neville had done some detailed research on the internet and elsewhere and he had put together a set of notes about all the different types of procedures for resolving disputes in various ways other than by arbitration or litigation. I shall not comment directly upon his talk because I understand that the meeting will be fully reported elsewhere in the Newsletter. However, Neville asked the following questions with regard to all of the procedures which he had identified: How do they operate? Are they suitable for resolving construction and engineering disputes? The talk, as would be expected, was very interesting. Neville identified and explained each type of procedure. He followed the explanations with answers to his two main questions. After the meeting concluded, I returned home thinking about the causes of disputes and this ever widening range of procedures. When we talk about procedures in litigation we are, in general, primarily talking about procedures which attempt to ensure fairness as between the parties in dispute. In addition, of course, we are also talking about striking a reasonable balance between a facility which is operated by the State, partly at the tax-payers' expense, and the legitimate interests of parties in dispute; hence, for example, the Government's desire to press for mediation to help relieve the burdens placed upon the court system. When we talk about procedures in arbitration we are, in general, primarily talking about the procedures which the parties themselves have agreed to; which procedures are, of course, balanced with safeguards to ensure that they do not offend the public interests. When we talk about all the other procedures, i.e., those which were comprehensively presented by Neville, we are primarily talking about procedures which aim to simplify the dispute resolution process. That is not to say that in such procedures there is intended to be a disregard for fairness as between the parties. Rather, that fairness as between the parties is a presumption because the parties, themselves, have chosen to use a particular procedure to help resolve their disputes. Moreover, that there is a presumption that the parties who are in dispute, or parties who anticipate that they could be in dispute, have agreed upon a procedure which they believe will be simpler and better than other procedures. In addition to explaining about the dispute resolution procedures, I should add that Neville spoke also about dispute avoidance procedures. In connection with dispute avoidance, I generally believe that the concept of using dispute avoidance procedures, which go far beyond simple good management, are often a greater burden than resolving an actual dispute on the one job which has gone wrong; which job is often only one out of a hundred of jobs that go all right [save, of course, the real exceptions, namely: some of the monumental ventures which, owing to the inevitable flaws in their creation, are bound to be the breeding ground for disputes]. I recall one experienced contractor who was opposed to the general application of dispute avoidance schemes. At an early stage of my career in dispute resolution, I was dealing with a significant dispute for this contractor. At the time, I was trying to make out the case for monitoring all of the contractor's work to minimise the chance that such a dispute would arise on all the other work which was being undertaken. The contractor was unimpressed. The contractor said that such monitoring, beyond attempts at normal good management would add greatly to the costs. However, the contractor did emphasize that he wanted me to sort out a good procedure to deal with the dispute in hand effectively and speedily. I had to tell the contractor that I did not know of any realistic procedures which were speedy. Indeed, I had to paint a picture of a time-scale which ran into a period way beyond the contractor's stated expectations. However, in the event, the contractor did admit that many of his past disputes had taken years to settle and that many of them had died a natural death when the pressure of other work had diverted the management's attention to other matters. Nevertheless, I believed the contractor was hoping that bringing in outside help [i.e, me] for the dispute in hand, things would be speeded up. As I was not a complete beginner, I promised nothing on that front. Moreover, I provided the contractor with even more disappointment when I said that I knew of only one procedure which would be effective in the end. I told the contractor that this procedure was simply donkey-work and that I was offering myself as the donkey. I explained that the answer to dealing with the dispute was simply about finding out the real cause of the dispute and, if that search led us to be satisfied that there was some redress provided for in the contract, then there would be even more donkey-work involved in putting together the necessary proof. I explained that without the contractual basis and the proof, anything else would seem like empty gestures; no matter how forcefully put. I was given the instruction to proceed. The outcome of the dispute is not relevant to this article, save to say that if the matter were not confidential, I would not be disappointed to explain it. The contractor was glad to see the end of the matter, but even so there was no enthusiasm for looking at dispute avoidance on other works. In the context of this article, it has been my experience - regardless of procedure - that the donkey-work involved in finding the cause of the dispute, searching for the redresses provided for in the contract and digging out the proof always turned out to be the most effective and speedy solution. No Midas touches, no quick fixes, no gimmicks. Nothing, but simple donkey-work. Because of my views, partly as expressed above, I have been concerned that over the last decade or more, we seem to have been moving progressively more and more into an age of good procedures and compliance. This was demonstrated so well by Neville's talk. Indeed, I felt that Neville's strip line of ".... it is not necessary to shoot the engineer, only to ADR him!" was perhaps indicating Neville's own amazement at what he had gathered together. I hope that I am in line with Neville when I say that, in general, people who specialise in the resolution of disputes are happy to explore any procedure which is effective, but I cannot claim to speak for Neville when I add my great concern about all these new procedures. I believe that when the donkey-work is jettisoned in favour of procedures which can bring about settlements - sometimes very large settlements - based primarily upon complying with the procedures themselves, then there is always the danger that the outcome is simply that someone has been duped; and maybe that someone is the independent person or panel or the money provider; but not usually the claimant. However, one has to say that even though the claimant may have the benefit of making the initial running, sometimes when the claim is made without full attention being given to fact finding, the claimant becomes unwittingly the loser and the others who are involved become unwittingly the winners. The above may seem like an outrageous comment, but where the independent person or panel is intentionally unaware of all the facts of the dispute, then the effectiveness of the procedure is based upon the parties being fully aware of all the facts and, on that basis, they seek to reach a settlement within the framework of the procedure. Where, on the other hand, parties themselves are not fully aware of all of the facts, and nor is the independent person or panel, then what has any settlement or decision been based upon? In the absence of a satisfactory answer to that question one is bound to wonder about who was potentially duped by persuasion as opposed to being convinced by facts? Or perhaps, as they say, when both parties to the dispute and the independent person or panel enthusiastically wave the banners which proclaim a "win" "win" outcome to the dispute, then someone has simply lost the argument but managed to save face. However, when all the parties, together with the independent person or panel, have to hand all of the facts related to the dispute, then someone must have done the donkey-work; and their possession of the facts is the proof of that donkey-work. Too often one has the feeling that some people out there are saying, "It must be all right; because everyone has gone through the proper procedure and all the right boxes have been ticked." However, when no one has actually travelled the real journey of fact finding and of making out a clear case of liability in any dispute, surely there can be no comfort in saying that the procedure itself was good. At the Chartered Institute of Arbitrator's, we should encourage the donkeys, as referred to in this article. They are the bedrock of dispute resolution. The procedure itself is simply one of the tools in the process. END Francis Miller |
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