Project Dispute Research Articles

Incorporation of database approach into contractual issues: Methodology and practical guide for organizations

A total avoidance of project disputes is an impossible situation. Yet, the purpose should identify the perspectives of minimizing disputes or maximizing avoidance. By referring to past experiences on the causes and the suggested solutions, this research reckons that it can assist in avoiding or resolving similar situations at the onset of the dispute occurrence. Therefore, the objectives are: (a) to propose and develop a practical database system that can be employed by organizations to manage the past experiences, particularly for contractual issues, and (b) to validate and evaluate the database system from related organizations. Two actual projects were referred prior to finalizing the database system's structure. Microsoft Office Access tool was selected due to its wide-spread availability and user-friendliness to construction related organizations. The database system was evaluated and received positive feedback. It renders an insight toward the effort in avoidance of project disputes through the database approach.

Jury Sides with Public Owner in Fast-Track Project Dispute with Contractor

Juries will often decide disputes—even high-dollar-value disputes—based on the argument they find most reasonable.

Improving classification accuracy of project dispute resolution using hybrid artificial intelligence and support vector machine models

Support vector machines (SVMs) have been applied successfully to construction knowledge domains. However, SVMs, as a baseline model, still have a potential improvement space by integrating hybrid intelligence. This work compares the performance of various classification models using the combination of fuzzy logic, a fast and messy genetic algorithm, and SVMs. A set of public–private partnership projects was collected as a real case study in construction management. The data were split into mutually independent folds for cross validation. Experimental results demonstrate that the proposed hybrid artificial intelligence system has the best and most reliable classification accuracy at 77.04%, a 24.76% improvement compared with that of SVMs in predicting project dispute resolution (PDR) outcomes (i.e., mediation, arbitration, litigation, negotiation, and administrative appeals) when the dispute category and phase in which a dispute occurs are known during project execution. This work demonstrates the improvement capability of hybrid intelligence in classifying PDR predictions related to public infrastructure projects.

2011 Best Paper Awards

A committee at the Journal of Legal Affairs and Dispute Resolution in Engineering and Construction selected the following two articles as the best papers for 2011: 1. In the Forum/Synopsis category: Tak Wing You and Sai On Cheung, “Behavioral Studies of Project Dispute Negotiation in Engineering and Construction: Visit to Bandura’s SelfEfficacy Theory.” Vol. 3(3), pp. 97–100. 2. In the Scholarly/Feature/Case Studies category: Peter J. Boucher, M. Scott Devlin, and Amarjit Singh, “Regulations and Liabilities of Constructed Wetlands for Aquacultural Wastewater Treatment.” Vol. 3(1), pp. 41–51. Congratulations to the authors for their contribution to the profession and the Journal.

Predicting Disputes in Public-Private Partnership Projects: Classification and Ensemble Models

Proactively forecasting disputes in the initiation phase of public-private partnership (PPP) projects can considerably reduce the effort, time, and cost of managing potential claims. This comprehensive study compared classification models for PPP project dispute problems. Performance comparisons included four machine learners, four classification and regression trees, two multivariate statistical techniques, and combinations of techniques that have performed best according to a historical database. Experimental results indicate that an ensemble technique (i.e., SVMs+ANNs+C5.0) provides better cross-fold prediction accuracy (84.33%) compared with all other individual classification models. Notably, SVM (support vector machine) is the best single model for classifying dispute propensity in terms of overall performance measures. This study demonstrates the efficiency and effectiveness of data-mining techniques for early prediction of dispute propensity in PPP projects pertaining to public infrastructure services. The modeling results provide proactive-warning and decision-support information needed for managing potential disputes before disputes occur. DOI: 10.1061/(ASCE)CP.1943-5487.0000197. © 2013 Ameri- can Society of Civil Engineers. CE Database subject headings: Data collection; Private sector; Project management; Dispute resolution; Decision support systems. Author keywords: Data mining; Classification; Public-private partnership; Project management; Dispute prediction.

A cusp catastrophe model of withdrawal in construction project dispute negotiation

One of the serious challenges for construction project dispute negotiation is keeping the negotiating parties' at the table. If they lose interest to continue, i.e. withdraw from the negotiation, then the prospect of having a negotiated settlement is fairly remote. Previous studies have identified withdrawal is an attitudinal response to behavioral primers. Furthermore, withdrawal has also been observed to be a sudden change in behavior similar to the phase change described by Catastrophe Theory. Such phase change is characteristically described as catastrophic change. This study aims to study the behavioral primers that trigger the sudden withdrawal in construction project dispute negotiation. For this purpose, withdrawal is first examined and the measures of withdrawal are discussed. With the three behavioral primers, (1) motivation, (2) cognition, and (3) personality that have been identified as withdrawal triggers, six cusp catastrophe models of withdrawal are developed. With data collected by a specially designed questionnaire, the programme Cuspfit was employed to examine these models statistically. The advancement in information technology has enabled the software be available for researchers anywhere in the world. The availability of this specially developed software greatly enhanced the study and application of the catastrophe theory in behavioral type of study. Furthermore, the capability of the software in presenting data in cusp catastrophe forms graphically is particularly illustrative. The findings suggest that (1) withdrawal is contingently bimodal, (2) once a party withdraws, it is effort-laden to offset a withdrawal, and (3) the catastrophic change of withdrawal behavior is more likely for task-oriented negotiators who have little concern on relation. Recommendations are made on the ways in which research and practice can contribute to negotiation success through attention to the link between withdrawal and the three behavioral primers. The “make or break” attitude of a negotiator not only manifests as tactic but also fuels withdrawal. In construction, there have been limited studies about the underlying behavioral drivers of withdrawal. This paper provides a renewed perspective on drivers of withdrawal and application of cusp catastrophe model in construction project dispute negotiation. Further research on the ways to facilitate construction dispute negotiation has been suggested. ► Withdrawal is phenomenon when negotiator loses interest to continue negotiation. ► Behavioral primers, i.e. motivation, cognition and personality, trigger withdrawal. ► Withdrawing behavior can be catastrophic. ► These catastrophic effects depend on negotiators' task- and relation-orientation.

Construction project dispute negotiation: a conflict-trust mapping framework

Trust between negotiating parties has been identified to have a positive impact in achieving negotiated settlements. This study aims to test this proposition in the context of construction project dispute. To achieve this, bases of trust and conflict types are identified through literature review on the respective subjects. As a result, three trust bases: cognition, behaviour and affect are listed. Two major conflict types; C-type and A-type conflicts are translated into five construction project dispute scenarios. With these, five conflict-trust relationship frameworks are developed. With data collected from Hong Kong construction professionals, these frameworks are confirmed by structural equation modelling (SEM). Data sufficiency for SEM is augmented by bootstrapping analysis. Affect-based trust is found to be the most versatile while cognition-based trust is the least instrumental. Despite construction project disputes are content specific, the human aspect during negotiation cannot be under-estimated. It is also found that robust contract governance puts parties on a legality-trusting platform. The main message from this study is that negotiated settlements are more likely if the negotiating parties can establish common ground through effective information exchange – a situation where trust would prove to be instrumental.

Withdrawal in Construction Project Dispute Negotiation

A negotiation is doomed if a negotiator loses the desire to continue with the discussion, and it is described as withdrawal (WA). Construction project disputes are content-specific, with resolution options governed by the contract, thus fitting neatly with the rationality framework. Nevertheless, failure in construction project dispute negotiation (CPDN) is not uncommon. The prospect of having a successful negotiation is hampered when behavioral factors creep in. This study aims to uncover the underlying factors affecting WA in CPDN from a behavioral perspective. The behavioral tradition of negotiation study identifies three behavioral primers: motivation (task versus relation), cognition (emotion versus rationality), and personality (competition versus cooperation). With these, a relationship framework between WA and the three behavioral primers is proposed. With data collected from construction professionals in Hong Kong, the relationship framework is subjected to a confirmatory analysis by structural e...

Causal Discovery and Inference of Project Disputes

Disputes have become an endemic feature of the Australian construction industry, despite the intense introspection into their causes and the identification for avoidance strategies. It is well known that factors, such as scope changes, poor contract documentation, restricted access, unforeseen ground conditions, and contractual ambiguities are contributors of disputes, but there is limited knowledge about the underlying latent conditions, referred to as pathogens, which contribute to their occurrence. In addressing this gap, the pathogens and the causal chains of disputes in construction projects are examined using an interpretative research approach based upon analytic induction. Forty-one in-depth interviews were undertaken with industry practitioners who identified 58 examples of disputes that they have been actively involved with. The analysis of the findings revealed that the pathogens associated with circumstance, practice, and task performance accounted for a significant proportion of disputes identified by practitioners. The environment associated with the use of traditional lump sum contracting, the practice of deliberately not adhering to polices and procedures, the task of failing to detect errors, and misinterpreting contract terms and conditions were revealed as contributors to disputation between parties. The presented research enables an ameliorated understanding about the mechanics and interactions of disputes to be attained. An underlying orthodoxy is established and should be followed by clients if the performance of projects is to be improved.

Behavioral Studies of Project Dispute Negotiation in Engineering and Construction: Visit to Bandura’s Self-Efficacy Theory

The aim of this forum is to provide a thought-provoking essay on an engineering management topic—the behavioral studies of project dispute negotiation. This essay explains project dispute negotiation as it widely applies to the engineering management and provides a short review of the behavioral studies of project dispute negotiation. Furthermore, a popular psychological theory, Bandura’s self-efficacy theory, is introduced. The potential research opportunities of researching and applying this theory are also discussed in the last section of this forum.

India-Pakistan: coming to terms

Conceptualizing Enduring Rivalry and Negotiation Composite Dialogue Process (CDP): A Structured Mechanism for Addressing Indo-Pak Rivalry Bridge Over Troubled Waters: The Indus Waters Treaty The Rann of Kutch Dispute and the Resolution Process Siachen Dispute: A Glacier in Need of Thaw The Sir Creek Dispute: A Case of Compromise Driven by Common Interests The Tulbul Navigation Project/Wular Barrage& Storage Project Dispute: A Casualty of Linkage Politics? Learning from the Past to Address the Present and Shape the Future Annexure I. Text of the Indus Waters Treaty Annexure II. Text of the 1965 Ceasefire Agreement

Dealing with oil and gas unions

Since the commencement of the Fair Work Act 2009 (Cth) (FW Act) on 1 July 2009, there has been a significant increase in union activity in Australia’s oil and gas industry. Recent case examples concerning the Pluto Project and various other disputes flag the importance of project managing industrial relations to ensure project delivery dates are met. Due to the contract interdependencies on large scale oil and gas projects, industrial action taken by a union in relation to a single sub-contractor can have ripple effects—causing budget blow-outs. Emerging union influence is such a concern that some of Australia’s leading companies operating in the oil and gas industry now identify industrial activity as a key project risk. Furthermore, many Australian leading financial institutions now assess a company’s potential exposure to industrial action as part of their key lending criteria. New innovative industrial relations strategies are now part of the weaponry Australian unions use when representing their members—this includes global union strategies. Moreover, there is already evidence that the FW Act can promote the occurrence of demarcation disputes between unions. This type of industrial activity leads to poor outcomes for employers and can prove to be very costly—especially in a multi-million dollar a day industry. Providing insight into the recent union activities in the industry are the following cases: Heath v Gravity Crane Services Pty Ltd Boskalis Australia Pty Ltd v Maritime Union of Australia CFMEU v Woodside Burrup Pty Ltd Offshore Marine Services Pty Ltd v Maritime Union of Australia There are a number of strategies oil and gas companies and sub-contractors can use to mitigate the effects of union influence in the workplace.

Case for Expanding the Claim Dispute Resolution Training of TxDOT Personnel

Texas Department of Transportation (TxDOT) currently uses general alternative dispute resolution and dispute management tactics to resolve construction claims. The successful application by TxDOT of project partnering methods, critical path management, and the Contract Claims Committee has resulted in a relatively low number of claims filed. However, one weakness in TxDOT’s current methodology is the lack of specific protocol for project-level personnel and administrators. The following survey of TxDOT dispute resolution methods emphasizes the importance of developing a personnel training catalog for Area Engineers in order to avoid costly claim dispute escalation. As the individual primarily responsible for resolving project and district-level disputes, the Area Engineer should be equipped with dispute resolution training if TxDOT wishes to improve the efficiency of its alternative dispute resolution protocol.

Exploring the Potential for Predicting Project Dispute Resolution Satisfaction Using Logistic Regression

The success of a construction project depends on the coordinated efforts of project team members. This is especially crucial when a project is having disputes. In fact, achieving satisfactory project dispute resolution can be a form of project success. This proposition has been empirically demonstrated a research that studied project dispute resolution satisfaction (DRS) using multivariate discriminant analysis (MDA). This chapter reports on a study that builds on that research, with the specific aim of predicting project DRS through the use of logistic regression (LR). In this study, a LR model of project DRS (Model 1) is developed, and then compared with the MDA model. The findings suggest that the LR technique provides a higher hit rate and thus a higher proportion of correct classification. With the wider acceptance of the use of alternative dispute resolution (ADR) methods, the effect, on the LR model, of changing the demarcation between adverse and favorable project DRS is also examined. For this examination, another LR model (Model 2) was developed. It is believed that Model 2 may reflect the prevailing sentiment that ADR is viewed as an amicable way to resolve disputes. Both the MDA model and LR models (Model 1 and Model 2) indicated that “design changes” are the root cause of adverse project DRS. Within the scope of the project data, these findings suggest that design changes are not just disruptive to project progress but also a critical cause of construction disputes.

The Process of Conflict Resolution in Public Project Disputes: Analysis by Settlement Methods

This study examines thirteen recent public dispute cases in Korea with the objective of analyzing the process of conflict resolution and thereby assessing the role of alternative dispute resolution (ADR) in public disputes. The focus is on dispute cases related to development of, or site selection for, public projects. Based on detailed accounts of events, the nature of the conflict, parties involved, pattern of actions taken, and final outcomes are analyzed. Only five cases were settled by ADR methods, indicating that ADR is rather ineffective in public conflicts. ADR seems to work better in locally confined, structured conflicts where participatory processes are used. An identifiable pattern in attempts at ADR is that ad-hoc committees are formed but often fail to reach agreement or are seen as lacking legitimacy, authority, and impartiality. Policy implications drawn from this study are that a higher priority should be given to developing community-based conflict resolution programs, that ADR should be incorporated into local government regulations to acquire greater legitimacy, and that conflict prevention procedures are a prerequisite for the success of conflict resolution programs.

Arbitration for Supply Chain and Money Supply Cause Disputes in PPP Projects: Distilling Comparative Economic Interests from the Greek Legal System

The worlds of arbitration and business infrastructure look at each other with ever greater intensity. The longevity, financial stakes and contractual features of PPP (Public-Private Partnerships) projects suggest that public, institutional and private stakeholders may not have overlapping decision-making portfolios. In a new transient domestic and international commercial and investment era, the economic drivers for arbitration in supply chain and money supply cause (third party) project disputes is not well documented. The present paper reports upon the institutional and legal environment of this dispute regime in the developing infrastructure market of Greece and identifying the impact of a legal environment upon the stakeholders’ business incentives to press ahead with arbitration. A critical appreciation of the contours of the legal and business risks involved in arbitration will confirm the need to invent a new procedural tool and practice standard, a “level playing field” which will be responsive to the project risk profile and the parties’ economic interests. The findings of the present study are two-fold. First, they confirm that the parties will be more inclined to embark upon arbitration at the end of the construction phase, and second, that domestic and international stakeholders’ economic interests in the regime are measured against their anticipated losses from non-completion of the PPP projects. The findings of this study further re-theorise arbitration as a “cyclical” or “counter-cyclical” dispute resolution regime. Construction management researchers will benefit from an exploratory and informed appreciation of unorthodoxies in the Greek legal system and gain from a fresh approach of economic incentives when they are faced with decision-making tasks as arbitrators or engaged in dispute resolution contract drafting.

Construction Project Dispute Resolution: Options for Effective Dispute Avoidance and Management

Construction Project Dispute Resolution: Options for Effective Dispute Avoidance and Management

Discussion of “Model for Understanding, Preventing, and Resolving Project Disputes” by Panagiotis Mitropoulos and Gregory Howell

Discussion of “Model for Understanding, Preventing, and Resolving Project Disputes” by Panagiotis Mitropoulos and Gregory Howell

Closure to “Model for Understanding, Preventing, and Resolving Project Disputes” by Panagiotis Mitropoulos and Gregory Howell

Closure to “Model for Understanding, Preventing, and Resolving Project Disputes” by Panagiotis Mitropoulos and Gregory Howell

Model for Understanding, Preventing, and Resolving Project Disputes

Based on the comparative analysis of 24 construction disputes, this paper presents a process model that explains the development of disputes. The model examines the combined effect of project uncertainty, contract, working relations, and problem solving effectiveness on the development of disputes. The model develops a classification of problem situations, and identifies the problem-solving requirements and the potential for dispute in each situation. The model indicates that the prevention of complex, high cost disputes depends more on the planning and problem solving ability of the project organization, and less on the contractual terms. The paper identifies the following actions that can reduce the number and severity of claims: reduction of project uncertainty, reduction of contractual problems, reduction of opportunistic behavior, increased the project organization's problem-solving ability, and use of alternative dispute resolution methods to reduce resolution costs.