Dispute Avoidance Research Articles

Dispute Avoidance in the Construction Industry: A Perspective of Procurement Methods

Dispute Avoidance in the Construction Industry: A Perspective of Procurement Methods

Application of lean for early identification and avoidance of disputes in construction projects

Purpose The dispute resolution process in the construction industry is known for delays in settlement, with some cases even escalating to complex arbitration and litigation. To avoid conflicts turning into disputes, the parties need to be proactive in identifying and resolving conflicts in their nascent stages. It is here that innovative lean construction practices can potentially act as a game-changer to avoid disputes, and this study aims to attempt to understand this phenomenon empirically. Design/methodology/approach A questionnaire-based empirical study, followed by semi-structured interviews, is conducted to understand the relevance of key tenets of lean principles in dispute avoidance. Findings Although stakeholders agree on the usefulness and practicality of lean principles in dispute avoidance, the extent of agreement is lesser when it comes to its implementation practicality. Moreover, there is a demographic influence observed on lean tenets such as “open communication”, “stakeholder collaboration” and “constraint identification”. Practical implications The results point towards an approach that combines contractual mandate, training and awareness creation to iron out the differences in the usefulness and practicality of lean approaches to avoid disputes. Originality/value Lean implementation is widely discussed in many construction contexts, such as sustainability, productivity improvement and planning. However, a discussion on lean philosophy’s role in dispute avoidance is muted. Therefore, this study assumes significance.

Avoiding construction disputes: a comprehensive framework for pre-contract planning

Many industry disputes originate during the pre-contract stage, emphasizing the importance of preventing these issues early on rather than relying on post-facto resolutions. Therefore, professionals need to act proactively to avoid lapses in the pre-contract stage from the initial stage of the construction project. However, the current literature lacks an investigation of dispute avoidance by identifying professionals involved in the pre-contract phase of construction projects. This research, thus, aims to investigate the strategies to avoid disputes in construction projects in the pre-contract stage from the perspective of responsible professionals. The study adopted a qualitative approach by conducting semi-structured interviews among 15 industry practitioners involved in dispute management practices, selected through purposive sampling. The data collected was analyzed using the N-Vivo12. The findings revealed 48 lapses in the pre-contract stage and 104 strategies to avoid disputes. The findings further revealed that most of the lapses occurred during the technical stage. In contrast, the architects are responsible for design errors, and quantity surveyors contribute to documentation issues. The research offers a comprehensive framework for professionals and regulatory authorities to encourage dispute mitigation efforts, thereby contributing to the body of knowledge.

Integration of blockchain in contract management for prevention of construction disputes: a systematic literature review and conceptual framework

Certainty, commitment, and communication are essential requirements which seem to be eluding the existing contracting process giving rise to claims and disputes. Contract management practices continue to be manual and traditional despite the digital and technological developments in construction sector. Blockchain technology is increasingly used in different aspects of the business world with its intrinsic qualities of transparency and security. This research conducts systematic literature reviews in three areas aiming to: analyse the chronic problem of construction disputes, investigate recent methods and tools of contractual dispute avoidance, and provide a compelling rationale for the integration of blockchain technology into the contracting process. While the ‘contract-related’ issues were found to be the leading cause of disputes, a ‘centralized’ hierarchy-based environment was established as one of the key challenges to dispute avoidance mechanisms. Discussion followed by feedback survey from industry experts further validated the literature review results. Based on the findings, an integrated blockchain-based conceptual framework is proposed illustrating a contracting process that is: (1) efficient and transparent; (2) digitally integrated; and (3) trustworthy and secure in execution. The study reviews the existing practices and challenges in contract management and offers an interdisciplinary and novel approach for future research in this domain.

Dispute Classification in Construction Projects Based on Litigation Cases

Disputes in construction projects arise due to failure to address their root causes and lack of procedures for dispute avoidance and mitigation. Courts are facing a growing number of construction-related lawsuits that hinder the resolution processes with negative impact on the project completion. This study was an attempt to define major causes of disputes in construction projects from a review of 177 selected litigation cases in the Kuwaiti courts. Dispute sources in construction were classified into four categories: abnormal conditions, financial situation, project delay, and project management. Statistical analysis was conducted to rank the severity of dispute sources. For verification of results, construction experts were interviewed. A regression model was used to predict the disputed claim value. The most severe dispute sources were ranked according to the following: payment delay, contract documents (incomplete information, conflict of interest in both parties, noncompliance, unawareness), main contractor time delay, and owner time delay. It is hoped that results open avenues to a clearer understanding of the causes of disputes in contractual agreements in the construction industry, as well as identify areas to mitigate dispute occurrences. Because the scope of the research was limited to Kuwait, findings of this investigation may lead to a more in-depth investigation of other court scenarios of similar nature from the other parts of the Gulf region.

A novel approach for construction disputes causal inferences based on empirical data: a case-controlled method combined with Bradford Hill criteria

PurposeThis paper aims to devise a case-controlled method combined with Bradford Hill criteria for causal inference of contractual disputes in construction projects. It is a genuine attempt in a systematic method from research design to execution for causal issues where only observational data is available.Design/methodology/approachThe authors located insufficient top management support as the putative pathogen of construction disputes based on a literature review, an interview and Delphi surveys. A questionnaire survey was then conducted to collect case-controlled data to ensure comparability, in which for each disputed project put in the experimental group, the authors sought for a dispute-free project of similar characteristics. The incidence rates of insufficient top management support in the experimental and control groups were then examined by Bradford Hill criteria as an alternative to the test of intervention effect.FindingsThe association of insufficient top management support and construction disputes was tested to conform with the Bradford Hill criteria with case-controlled data where applicable and logical deduction where statistical tests were not applicable. With a clear, positive, reasonable and statistically significant association, while excluding methodological biases, confounding and chance, the authors reached a causal verdict of insufficient top management support causing contractual disputes.Originality/valueThis paper supports the validity of applying a case-controlled method combined with Bradford Hill criteria in investigating causal issues in project management, especially the verdict of causal inference based on empirical data. In addition, the located root cause of contractual disputes could inform project management personnel with reasoned strategies for dispute avoidance.

Dispute Avoidance in Public Construction Projects

Dispute Avoidance in Public Construction Projects

Construction Dispute Potentials: Mechanism versus Empiricism in Artificial Neural Networks

The booming development of neural network algorithms has shifted the research focus in the field of construction project management from causal investigation to statistical approximation and hence from mechanistic models to empirical models. This paper took construction dispute avoidance as an example and enabled the best efforts to establish paired mechanistic and empirical models to investigate if the pursuit of a mechanistic understanding of construction disputes should be continued. A Bayesian belief network and multilayer perceptron were used for mechanistic and empirical simulations, respectively. A list of critical dispute factors was first identified from the literature and shortlisted by Pearson’s chi-square tests and Pearson product-moment correlational coefficient tests. The structure of the Bayesian belief network was constructed with logical deduction assisted by a further literature review and Delphi surveys. A structured questionnaire survey was conducted to collect quantitative data for factor shortlisting and model quantification. It was revealed that, being assisted with machine learning techniques, both mechanistic and empirical models achieved an accuracy rate of over 95% under ideal conditions. However, Bayesian belief network models predicted better with fewer constraints due to their advantages in reflecting the formation mechanism of construction disputes, while multilayer perceptron models were more constrained by the inconvenience of sourcing high-quality data as model input. This paper demonstrated that it is still necessary to investigate the formation mechanism of construction disputes further for more efficient avoidance strategies. During the investigation of model construction and comparison, this paper also reflected on the interpretation of statistical threshold and proposed that an arbitrary single cut-off point for statistical tests could potentially eliminate factors that should have been included.

Sulh: A Shariah-Compliant Dispute Avoidance Practice for the Construction Industry

Shariah is not just an Islamic law but also a moral code to guide man in enjoining good and abstaining from evil, which includes the actions of mitigating and resolving conflicts in society. Sulh is a form of peacekeeping mechanism laid down by the shariah, and in the Quran, Sulh is regarded as a form of conciliation and “the best form of settlement”. Traditionally, Sulh has been employed as a dispute resolution method in societies, from marital dispute to contractual disagreement. While many confined the spectrum on Sulh only in the area of dispute resolution, research on how Sulh could be employed as a dispute avoidance procedure is yet to be found, although, essentially it has been practiced as such by the Prophet and his companions. With regard to the construction industry, the dispute has caused multi-billion Ringgit of losses. While there are acceptable methods to avoid dispute from conventional perspective in the industry, dispute avoidance from the perspective of shariah has not been addressed. This paper aims to examine how Sulh could be employed as a procedure to avoid dispute. This study adopts qualitative methods where the secondary data are collected from books, journals, reports and statutes to review the practices of dispute avoidance in the construction industry, as well as in shariah. Moving on, the content analysis is adopted to analyse on how Sulh fits in the construction industry as a dispute avoidance practice by comparing the key criteria with the conventional dispute avoidance mechanisms. The finding shows that Sulh shares many similarities with the conventional dispute avoidance; thus, supporting the notion that dispute avoidance is not absolutely absent in shariah, which provides for a possibility to be applied in the construction industry.

Tackling the impacts of Covid-19 on construction projects: an exploration of contractual dispute avoidance measures adopted by construction firms

This study explores the measures that construction businesses are putting in place to mitigate the risks of litigation associated with potential contract breaches due to COVID-19. Field study and survey research was used to accumulate data for the preliminary study phase, whose results were used in the construction of the research questionnaire to elicit responses for the qualitative study phase. Using descriptive statistics, exploratory factor analysis and reliability analysis, data from the quantitative research study phase was analysed to reveal the top and underlying strategies adopted by the construction firms in avoiding contractual disputes. These adopted strategies include maintaining good relationship with contractual partners, quick report of any potential for dispute, collaboration with contractual parties for goodwill, early decision on site closure and studying of contractual terms for notice period information. Following the discussion on the underlying measures, the top-rated adopted strategies were identified and discussed in the paper. This study provides an opportunity to learn from the measures adopted by construction firms in avoiding contractual disputes precipitated by the Covid-19 pandemic. This will aid the companies in minimizing risks, reduce spending and uncertainties in order to focus attention on maintaining existing contractual relationships to secure future businesses.

Sustainable Green Finance towards a Green Belt and Road

AbstractAt the second Belt and Road forum in 2019, the Chinese government set out its intentions to develop a “Green Belt and Road”. This paper will examine critical issues arising from green-financed projects under the Belt and Road. In particular, the root issue of the lack of harmonized sustainability standards for green bonds globally. While there are positive regulatory developments, there is still a big gap between companies’ reporting metrics and investors’ growing expectations of what constitutes “green”—constituting “green washing”. This issue compounds as green projects under the Belt and Road are often complex infrastructure projects, where unexpected (and negative) externalities may sometimes occur on the ground. In this regard, this paper advocates for robust risk management, where accurate forecasting of environmental harm and stakeholder engagement are implemented actively throughout the project's life cycle. Finally, adequate dispute resolution and avoidance measures should be adopted to protect stakeholders.

Aetiology and Progression of Construction Disputes towards a Predictive Model

Construction projects are at risk of dispute. Dispute prevention is thus expected to avoid that cost. This paper aims to establish a model predicting the occurrence of disputes and identifying strategies regarding resource allocation in dispute avoidance. Factors in the model were identified by a literature review and conceptualised into aetiology and progression of dispute formation based on an analogy with epidemiological investigations. The model structure was established upon this analogy, validated against Bradford Hill criteria, and then quantified by conducting a Bayesian network analysis with samples returned from a questionnaire survey. The model shows high accuracy rates with both complete and incomplete input data. Finally, a sensitivity analysis was conducted to simulate the results of potential management measures available to be taken. This predictive model not only serves the prediction function but also traces back to factors causing disputes, and hence can be used to assist decision making before and during a construction process. At the centre of the model sits the causal mechanism investigation, but the existing methods only shed lights on correlational research without causal consideration. This paper devised an epidemiological investigation which covers from causal proposition to causal examination and contributes greatly to model establishment.

PREDICTING THE LITIGATION OUTCOME OF PPP PROJECT DISPUTES BETWEEN PUBLIC AUTHORITY AND PRIVATE PARTNER USING AN ENSEMBLE MODEL

Apart from the loss of time and money, disputes between public authority and private partner in China’s public-private partnership (PPP) projects are destroying the government’s image of PPP support and the private partner’s investment confidence. This article aims to explore the main causes for PPP disputes, present the results of disputes, and then predict the litigation outcomes. Based on 171 PPP litigation cases from China Judgements Online within 2013–2018, the research identified 17 legal factors and explained how these factors influence the litigation outcomes, which are named as “prediction approach” in this study. Nine machine learning (ML) models were trained and validated using the data from 171 cases. The ensemble model of gradient boosting decision tree (GBDT), k-nearest neighbor (KNN) and multi-layer perceptron neural network (MLP) performed best compared with other nine individual ML models, and obtained a prediction accuracy of 96.42%. This study adds meaningful insights to PPP dispute avoidance, such as high compensation of expected revenues could prevent the government from terminating the contract unilaterally. To some extent, if parties consider the case litigation outcome, they are more likely prefer a rational settlement out of court to avoid further aggravation of the dispute, and would also alleviate the pressure of litigation in China.

Non-Compliance Procedures: A Proactive Approach to Dispute Avoidance in International Space Law

Conflicting interests of state and non-state space actors will likely lead to a myriad of legal disputes. In turn this could intensify the militarization of space and have a destabilizing effect on international security, the New Space industry and the environmental protection of Earth and outer space. It is therefore vital that boundaries set by the UN Space Treaties are respected. Unfortunately, international space law makes no provision for non-compliance procedures (NCPs). The purpose of this article is to advocate for the integration of non-compliance procedures within international space law. Following the introduction, this article provides a brief background on the concepts of compliance and non-compliance and using examples from international environmental law, NCPs are explained. It then examines several dynamics of the New Space industry which call for the implementation of NCPs. The subsequent section critically analyses benefits and challenges likely to arise from the use of NCPs in international space law. The article concludes by suggesting that the implementation of NCPs would contribute to a proactive, holistic and effective mechanism to better protect the legal boundaries likely to be challenged by modern uses of outer space. international law, outer space, international space law, compliance, dispute avoidance, non-compliance procedures, non-state actors, proactive approach

Use of Dispute Avoidance and Adjudication Boards

AbstractArticle 88 of Law No. 2 of the Republic of Indonesia in 2017, concerning construction services, suggested three stages of dispute resolution: (1) mediation, (2) conciliation, in which both ...

Applying BIM to support dispute avoidance in managing multi-owned buildings

Abstract With the growth of high-density living, disputes experienced by residents in multi-owned buildings (MOBs) have become an ongoing challenge in urban areas. A significant number of the disputations have found their root cause in the issues concerning improper use and management of MOBs by residents. It stems from their inaccurate understanding of ownership rights that are inherently 3D but using 2D cadastral survey plans, authoritative documents of ownership. This research explores the ability of building information modeling (BIM) to address required information for improving the perception of ownership rights that affect resident behaviors in managing MOBs. An open data model of BIM is extended to accommodate the necessary information for preventing resident misbehaviors that led to dispute cases in Victoria state, Australia. In this study, we implement BIM data of an MOB where a real dispute happened to demonstrate the validity of the enriched data model on the information delivery and an enhanced understanding of ownership rights. It is confirmed that the use of BIM facilitates the alleviation of the misbehaviors by informing residents with accurate communication of ownership rights and could support the avoidance of disputes in MOBs.

Power of Incentivization in Construction Dispute Avoidance

AbstractPerception of unfairness stems from disproportionate risk allocation and power distribution. In traditional design-bid construction projects, it is common to find employers shifting all ris...

Analysis of Transportation Agencies’ Claim History: Partnered versus Nonpartnered

AbstractThe literature on dispute avoidance credits claims avoidance as one of the primary benefits of a formal partnering program. A recent survey from AASHTO found that a number of agencies have ...

Specialist Techniques for Construction Dispute Resolution: How Many Ways Can the Cat Be Skinned?

Parties to construction and infrastructure projects have been at the forefront of developing and/or adopting a range of dispute avoidance and resolution measures: partnering, dispute boards, adjudication, expedited (or ‘fast-track’) arbitration, and mediation. Closer analysis reveals that preferences vary according to region, as does the take-up of such initiatives.This article looks at what methods have worked in the Gulf, and what other techniques might usefully be deployed. Some methods, like partnering and expedited arbitration, may have been advocated previously with mixed results.The article contends that this was not because of some inherent unsuitability, but because the time was not right. The article looks at a new partnering initiative, discusses dispute boards and adjudication, and considers the continued roll-out of expedited procedures by arbitral institutions (including the new ICC Rules, effective as from March 2017).The article explains how innovative and creative dispute resolution techniques might usefully be applied in the context of Gulf mega-projects.

Dispute avoidance procedure: Formulating a workable legal system in the Malaysian construction industry

Research on dispute avoidance procedure (DAP) particularly in Malaysia is lacking as most of the current research and development deals withvarious issues within the dispute resolution procedure and management field. It is therefore significant to conduct a country-specific research by exploring the viability of DAP based on socio-legal research. The aim of this article is two-fold: to present the perceptions of the Malaysian construction industry players on the substantive elements of a viable DAP mechanism and; to formulate a necessary legal reform to accommodate and support the formulated DAP mechanism within the Malaysian construction industry. As part of a socio-legal research approach, interviews were conducted with the selected construction industry players to disclosethe pattern, which may help to explain the underlying issues. NVivo software has been used to manage and organize the complete interview transcripts and facilitate the data analysis process for this study. Among others, this research suggests that a viable DAP mechanism consists of the following substantive elements, namely, to introduce the mechanism through contract and to provide a contractually binding settlement. In essence, this research also advocatesa necessary legal reform to accommodate and support the formulated DAP mechanism within the Malaysian construction industry. This research generally confirms that a country-specific research is required through a socio-legal research. Keywords: DAP, socio-legal research, construction industry, legal reform, legal system