DISPUTE RESOLUTION MANAGEMENT: FINDING THE MORE EFFECTIVE CONCILIATION FROM THE PRE-CONTRACT PHASE TO RESOLUTION PHASE

Abstract

Construction projects are usually involved in disputes, the management of which causes a considerable cost increase and time delay. New research frontiers regarding methods able to guarantee a rapidly agreed settlement, reducing time and costs, are suggesting lawyers new criteria to assign earlier the most effective alternative dispute resolution methods in the precontract phase. For this purpose, different criteria were analyzed, alternatives were selected and translated in legal contract language to bring the cumulative experience to being inserted as a clause into construction agreement. Other impulsive increase in research also occurs when bringing disputing parties together and when suggesting possible solutions to reach an agreed settlement during the conciliation steps. The authors, exposing some cases histories, analyze the common claims between the parties in construction contracts: delays, changes, unforeseen circumstances, insufficient information, and conflicts. Even though the claims must be properly constituted and documented, and the causes and effects must be clearly demonstrated, the quantification usually overestimates the loss due to inefficient productivity, which is extremely difficult to assess. The authors underline the role of the technical expert in forensic engineer as specialized in analyzing causes and effects by contemporaneous records and in verifying additional costs that must be supported by the regarding documents.