Other Services | Calderglen Associates - Construction Dispute Resolution Specialists

By: Calderglen  06-Dec-2011

Advisor, Advocate or Party Representative in formal and informal disputes

When you have a construction dispute you need someone with knowledge and experience in construction, contracts and contract law, dispute resolution processes, and the subject matter of the dispute. You will need a lawyer for legal advice, but we can do the rest.

Disputes are often destructive to business and personal relationships, so you should consider all options carefully before taking a stand. You just want advice to help you decide whether they (or you) are being unreasonable – we call that ‘reality testing’.

You can never be sure which ‘side’ will prevail, because there are many factors at play—legal, statutory and contractual rights and obligations, the facts as presented by each side, the relative strength of each side’s argument, the importance of any ongoing relationship, any willingness to compromise, and the dispute resolution process itself.

When it comes to a decision on the process you should consider matters such as the expected cost, the time commitment, your own availability, your ability to enforce a decision in your favour or appeal an unsatisfactory decision, the cost consequences of losing, the prospect of finality.

Only you can make the decision to proceed and on the process, or whether to settle or withdraw. Any such decision should be well-informed.

Depending on your needs we are able to: 

  • Appraise the contract documentation and your position 
  • Assist in preparatory work ‘behind the scenes’ where a claim or dispute is likely, including overview of claims, correspondence or documents 
  • Advise on ADR process options and strategies 
  • Act as your consultant, negotiator, advocate or representative in the selected process, working closely with your legal or other advisors. 
  • Prepare, or assist in preparing, your claim or response in a dispute 
  • Attending on meetings or negotiations as representative or advisor.

Elements of a mutually successful contract may include completed on time and within budget, customer expectations met, payments on time, and dispute-free.

Disputes are the hidden cost of construction. They damage relationships, and often arise out of differences between the parties’ understanding of their respective rights and obligations under the contract – Is the builder’s claim reasonable? Is the standard of work acceptable? Has the owner paid fairly?

While in hindsight it may easy to spot the cause of a dispute, it’s not so easy to guarantee that won’t happen on the next job. The complexity of construction contracts, the money at stake, and the risk of unmet expectations, and the need for underlying trust makes conflict and misunderstandings, but not necessarily disputes, inevitable.

Our experience in disputes provides a valuable insight into what can be done to avoid disputes. We offer practical and strategic advice on: 

  • Setting up contractual relationships at the outset, with robust documentation, tendering, evaluation and awarding of contracts. 
  • Advice on documenting tenders and contracts to identify and proactively manage risks to time, cost, quality and relationships. 
  • Practical applications of the Construction Contracts Act to optimise your own cashflow. 
  • Sound project management practices, including all aspects of project planning, risk, claims, payments, variations, monitoring, financial control and approvals. 
  • Dealing constructively with conflict – responding constructively when disputes arise, reducing risk of premature or inappropriate escalation of conflict.
  • Assistance and advice on preparation and response to claims for payment, variation, time extension, and other construction contract claims. 
  • Assistance or representation in negotiation of claims.

An Expert Witness in a dispute brings his or her professional skill and judgment to bear, impartially, on a relevant matter in the form of an expert report.

The overriding duty of an expert witness, under Schedule 4 to the Judicature Act 1908, is to provide an independent professional opinion to the court on relevant technical or other matters within that person’s areas of expertise.

As expert witness in Alternative Dispute Resolution, my primary obligation is to the tribunal (the judge, arbitrator, mediator or adjudicator).
Peter Degerholm offers Expert Witness services within the following areas of expertise: 

  • Progress payments, variations, final accounts 
  • Contracts including conditions of contract 
  • Application of the Construction Contracts Act 2002 
  • Quantity surveying issues including measurement, value of work, time for completion 
  • Specialist trade issues, in particular building services trades

Strategic support includes coaching and support for construction clients, contractors and subcontractors dealing with disputes or potential disputes, including: 

  • Responding to claims from contractors and subcontractors, and preparation of counterclaims where applicable. 
  • Strategic advice to a party involved in a dispute, including review of options for negotiation and ADR processes. 
  • Assistance, overview and coaching for the people involved in an ADR process, including case preparation, case analysis and rehearsal. 
  • Contract and tendering strategies 
  • Dispute prevention strategies