Construction is a significant contributor to the global economy, amongst many procedural complexities; it is usually unavoidable to complete a major construction project without disputes.
The costs of disputes are generally amongst the most complex and expensive actions to pursue in litigation and/or in arbitration, yet the time taken to finality can be in years after the project is either stalled or finished.
At MK Consultus, we believe that the number of risks inherent in construction invariably goes beyond any other industry and hence effective dispute avoidance techniques becomes an integral part of our service offering.
Online dispute Resolution:
E-filing and web technology development has allowed dispute resolution professionals to be available within seconds of a problem arising.
At MK Consultus utilising online technology and platforms, we can provide advice to clients remotely utilising face to face consultation or via using our website e-portals.
MK Consultus believe that the journey from alternative to online dispute resolution begins here as we can start a mediation at any time and continue in parallel with other forms of dispute resolution. Which also means no need for a stay of proceeding.
Dispute Review Board:
A dispute board or dispute review board or dispute adjudication board is a ‘job site’ dispute adjudication process, typically comprising independent and impartial professionals selected by the contracting parties’.
Established in the mid- 1970s as a non-traditional approach to reducing conflicts and costs, the key reason was to deal with the issues in hand without disrupting progress of the project.
The use of DBs is endorsed as a ‘successful technique’ for resolving and avoiding disputes in a timely and cost effective way by the world bank and mandated if using certain forms of FIDIC Contracts.
At MKC we have experienced dispute board experts who can help set up, run and provide members for the boards who can be actively involved throughout the construction process and to assist the Parties in concluding the contract either without disputes, or in the event that disputes arise, to resolve them with the minimum of time and cost so that the Parties can concentrate on completing the project.
A dispute arises when either party breaches the terms outlined in the contract. We at MK CONSULTUS provide expert dispute consultancy services. Our aim is to avoid, evaluate, and provide support for disputes that may arise during a project’s development cycle. Our goal has always been to make sure that your time, cost, and reputation is saved by reaching a conclusion as early as possible.
MK CONSULTUS has considerable experience in preparing and evaluating claims in-house, we believe in working with existing staff of clients (for detailed information) alongside our claim consultants. This combination helps us in effectively evaluating and accessing the quantum of damages arising out of delay and disruption events or lost productivity in design and construction activities.
Our familiarity with scheduling methodology allows us to evaluate opposing expert claims and verify their conclusions. MK CONSULTUS brings in a unique set of expertise by virtue of having a strong and experienced team of internationally recognized experts, who independently access construction claims and analysis to find true causes behind the delay and disruption during a project’s development cycle.
Dispute Avoidance Support:
Construction industry has always been marred by disputes and today in almost every region of the world, the ratio of disputes is increasing significantly; this makes the need to avoid disputes all the more vital. At MK CONSULTUS we understand that parties can fail to see eye to eye during any point of correspondence.
We at MK Consultus not only help our clients to avoid potential pitfalls at the start of the project but also regularly monitor progress to ensure that the risk of disputes is kept to absolute minimum.
Project delays and resultant damages are frequent causes of construction claims, our team of veteran RICS and CIARB certified schedulers have years of experience in forensic analysis of schedule updates and in isolating actual schedule impacts in complex multi-issue claims.
MK CONSULTUS employs the best methods available to analyze delays and determine responsibility. Our experience allows us to perform accurate time impact analysis and evaluate concurrency of multiple issues, our techniques are tested and recognized by the courts and boards.
Below is a list of common delay causes encountered on construction projects. One of the complications of a delay analysis is that the delays can be caused by a few of these listed causes or a complex mix of these causes. The time of their occurrence and who caused what delay adds to the difficulty of the analysis:
- Errors and omissions in the contract documents
- Contractor-caused delays for reasons under their control
- Delays for reasons beyond the contractor or owner’s control
- Owner-caused delays for reasons under their control
- Personality conflicts between the project’s team
Different methods that we use to analyze delays:
- As-Planned vs. As-Built method
- Impacted As-Planned method
- Collapsed As-Built or “But for” method
- Window Analysis method
- As-Built method
- Contemporaneous method
MK CONSULTUSs team has been acting as an expert witness on many occasions, from the onset we make sure and support the investigation surrounding the claim to ensure that correct strategic decision is taken. MK CONSULTUS can provide its services as an expert or take on the role of giving authoritative evidence in any court and tribunal.
Our mission is to provide the highest level of quality, integrity, and efficiency in dispute resolution services by offering an outstanding group of mediators, arbitrators, referees, and private judges, combined with superior case management.
Alternative Dispute Resolution:
We at Mk Consultus believe that Dispute avoidance in any industry is an important aspect of effective contracts management. Our first priority, where we are involved early in the process, is to seek all means of settling the issues with a view of avoiding disputes, and remain consistent with the requirements of our client.
At MK CONSULTUS our committed and professional team, has practical and in depth experience of ADR services in different sectors and industries around the world. We work with our clients to resolve disputes fairly, quickly and cost effectively in a vast array of settings and contractual arrangements. Often the dispute resolution needs of the parties cannot be met with standard “boiler plate” dispute resolution provisions. In those circumstances, particularly when dealing with stakeholders critical to the long term success of the organization, DRAs are a viable option worthy of consideration.
Where disputes do arise, it is important that they are managed by experienced and specialist personnel so that actions appropriate to the dispute are taken when required, strategies developed and placed to meet the client’s objectives, and opportunities for settlement are recognized and developed, when they occur.
Negotiation of a dispute is the process of bargaining that takes place between the parties. Discussions are held concerning the dispute, aimed at achieving conciliatory give-and-take agreements that are mutually acceptable to each party.
- Preliminary introduction of parties to negotiation
- Agreement on objectives of negotiation
- Negotiation process
- Review and Finalization of agreements reached
Negotiation is as much about tactics as it is about being convinced of the strength of one’s own case or about being totally familiar with all the commercial and technical aspects of the subject matter of the negotiations. It can be undertaken in an atmosphere of relative cooperation, as when all parties are seeking a solution that is mutually acceptable and beneficial (a win–win situation), or can be confrontational, where one or more parties intend to prevail over the others (win–lose situation).
The secret of successful negotiations lies in comprehensive and effective planning. Before the start of negotiations each party should consider the following points:
- Expected Outcomes
- Possible Compromise solutions
A non-adverbial process conducted without a prejudice basis, is an informal and confidential process whereby disputing parties use the skills of a mediator to assist them in reaching an agreement. The Mediator sometimes works (privately) in guiding the parties to understand their respective positions as well as receiving alternatives for settlement. This helps the mediator to view the dispute in depth this in turn helps in identifying ways to reach a settlement.
Mediation should be considered when there is a risk of either party not reaching on a successful conclusion during discussions in order to avoid time consuming and costly options of arbitration and litigation.
MK CONSULTUSs’ team of experts have vast experience of representing both sides in all aspects of mediation process and are on the panels of RICS, TeCSA, CEDR and chartered Institute of Arbitrations.
This is a private, simple and cost effective method of dispute resolution, completed within a stipulated period of time. Adjudication gives right to any party under a written contract to refer a dispute under the contract to an adjudicator. Decisions made by an adjudicator are binding on both parties until the dispute is resolved by agreement, arbitration or litigation.
Adjudication can be carried out anytime, even when a dispute is being or has been held under arbitration or litigation. Either party in a dispute can refer or start the adjudication process; if one party starts the adjudication process the other party cannot stop it.
Typical Stages in Adjudication process:
- A dispute
- The notice of Adjudication
- Nomination of Adjudication
- The referral Notice
- Response to the Referral notice
- Further Submission
- Meeting and/or Site Visit
- The Decision
- Enforcement of the Decision
MK CONSULTUS has a team of experienced adjudicators who are included on the panels of the RICS, TeCSA and the institute of arbitrators.
Arbitration is a way of reaching to a decision; binding and enforceable by law between two or more parties in a dispute, by an arbitrator. Arbitration makes sure that resolution of disputes is reached without any bias, delay or unnecessary expense. The parties to the arbitration should understand that Arbitration is, or should be, extremely flexible with many potential variants of procedure. Arbitration should not be confined or understood as an imitation of litigation, but should provide the parties with a genuine alternative, where the claimed advantages of time, cost, confidentiality and flexibility are in fact realized.
We have vast experience of representing both claiming and responding parties in all aspects of arbitration process. We have experts who are included on the panel of Chartered Institute of Arbitrators and who are nominated to act as Arbitrator.
Neutral Evaluation, sometimes called “Early Neutral Evaluation,” (“ENE”), is a process where a neutral third party hears presentations by disputants of their position; the process typically begins with the selection of a “neutral evaluator,” preferably someone who enjoys a high level of trust and regard by the attorneys. The attorneys and the clients likewise need to be invested in the process, both parties should be willing to actively listen to evaluator’s opinions and avoid confrontation.
This is achieved by selection of the evaluator and a pre-session conference call in which the parties submit written statements, much like arbitration briefs, although they may be in the form of offers of proof. Relevant documents and reference are included in critical deposition testimony, if discovery has progressed that far, or witness declarations under oath.
Although not suitable in all cases, there are obvious benefits to Neutral Evaluation. The process provides a speedy, private and non-adversarial opportunity for reality checking without the pressure of having to settle then and there. The evaluator provides the parties with insight into which arguments are likely to gain traction at trial and which likely to fail. It is thus particularly useful when lawyers’ clients are corporate executives, adjusters or risk managers who may need to report to other stakeholders before final decisions are made.