Best Practice in Construction Disputes
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Best Practice in Construction Disputes
takes a holistic approach to construction disputes in an effort to identify and examine their genesis and life cycle. It examines the factors that contribute to a high incidence of disputes on major construction projects, including the adversarial culture of the construction industry, the high degree of uncertainty surrounding projects, the inevitably of conflict between contracting parties and the role of the construction contract in facilitating such conflict.
Best Practice in Construction Disputes
analyses how conflicts on construction projects all too often escalate into costly and drawn-out disputes. It identifies strategies that parties can employ to ensure that conflicts are used to generate positive solutions to problems rather than escalating those problems into disputes.
Dispute Avoidance Processes (DAPs) are a relatively recent innovation that are increasingly being used on major construction projects around the world to help parties communicate, cooperate and collaborate and avoid the escalation of conflicts into disputes. Best Practice in Construction Disputes
contains the most comprehensive analysis of current DAP models, including Dispute Resolution Boards (DRBs), Dispute Adjudication Boards (DABs), and Dispute Resolution Advisors (DRAs).
DAPs are, not a panacea, and there will always be disputes that cannot be avoided. Best Practice in Construction Disputes
examines the key forms of Alternative/Appropriate Dispute Resolution (ADR) that are available for resolving construction disputes, including mediation, expert determination, senior executive appraisal/mini-trials and early neutral evaluation, as well as emerging hybrid models such as med-arb, arb-med and collaborative settlement processes. It provides the most scholarly analysis of how these models can be used to resolve construction disputes without the need to resort to any form of binding dispute resolution.
Some construction disputes are incapable of being resolved without the imposition of a final and binding decision. Litigation, arbitration and adjudication are the three forms of binding dispute resolution available for the resolution of construction disputes. Best Practice in Construction Disputes
examines these three systems in order to determine how they currently work and how they could be improved.
This is the first book to identify world's best practice in the three distinct areas of avoidance, management and resolution of construction disputes. It provides a comprehensive roadmap to guide the construction industry out of its current disputatious culture and into state-of-the-art practices that will make major construction and infrastructure projects more profitable for all involved.
• Examines the role construction lawyers can play before, during and after completion of a project to help the parties complete their projects on time, within budget and with no outstanding disputes.
• Comprehensively identifies best practices for the avoidance, management and resolution of construction disputes.
• Focuses on solutions for the construction community to work towards the avoidance of disputes, rather than just focusing on their resolution.
"The techniques for the management and resolution of construction disputes which are examined in this work have application throughout the world. This book will continue to provide insights of great value and set the bench marks for contemporary reform and further development in this field for many years to come".
-Justice Peter Vickery, Supreme Court of Victoria
"I welcome this book by Paula Gerber and Brennan Ong, in particular, the emphasis on dispute avoidance".
-Lord Justice Jackson, Court of Appeal of England and Wales
"This book amply fulfils its objective of presenting a holistic review of construction disputes, their avoidance and resolution. It is richly researched, drawing on practice from many jurisdictions. It presents cutting-edge solutions, particularly in the use of Dispute Avoidance Processes. The work should be standard reading for any professional embarking on a construction project".
-John Uff CBE QC FREng, Emeritus Professor of Engineering Law, King's College, London
"This book presents a comprehensive analysis of all forms of dispute prevention and dispute resolution approaches and techniques to "keep people out of trouble" in the construction industry. The authors' thoughtful and candid analysis of best practices for all forms of dispute prevention techniques, as well as more conventional dispute resolution techniques, make it a "must read" for construction management professionals, construction lawyers, and construction ADR specialists. In particular, I found the analysis of the origins, evolution, and various forms of Dispute Boards to be the most thorough analytical and practical treatment of the subject to date".
-Kurt L Dettman, Principal, Constructive Dispute Resolutions, Massachusetts
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Table of Contents
PART I - AVOIDANCE AND MANAGEMENT OF DISPUTES
Chapter 1 - Causes and Nature of disputes
Chapter 2 - Theory of conflict
Chapter 3 - Role of the contract in dispute avoidance
Chapter 4 - Philosophy of Dispute Avoidance Processes (DAPs)
Chapter 5 - Dispute Resolution Boards (DRBs)
Chapter 6 - Dispute Adjudication Boards (DABs)
Chapter 7 - Dispute Resolution Advisors (DRAs)
Chapter 8 - Evolution of DAP models
PART II - ADR
Chapter 9 - Philosophy of ADR
Chapter 10 - Negotiation
Chapter 11 - Mediation
Chapter 12 - Senior Executive Appraisal/Mini-Trials
Chapter 13 - Expert Determination and Early Neutral Evaluation
Chapter 14 - ADR Hybrids
PART III - BINDING DISPUTE RESOLUTION
Chapter 15 - Key Elements of Binding Dispute Resolution Systems
Chapter 16 - Adjudication
Chapter 17 - Arbitration
Chapter 18 - Litigation
PART IV - BEST PRACTICE
Chapter 19 - Best Practice in the avoidance, management and resolution of construction disputes
Dr Paula Gerber
has been a lawyer for over 25 years. She spent five years working as a solicitor in London, and five years as an attorney in Los Angeles before returning to Australia where she became a partner in a leading Melbourne law firm.
In 2000, Paula embarked on a major career change; moving from private practice to academia. She is an Associate Professor at the Monash University Law School and an internationally recognised expert in construction law, in particular in the areas of dispute avoidance processes (DAPs) and dispute resolution processes, particularly ADR.
Dr Gerber is the author of numerous books, book chapters and journal articles including, 'The Teaching of Construction Law and the Practice of Construction Law: Never the Twain shall Meet?' (2010) 20(1 and 2) Legal Education Review 59-84 and 'How to Stop Engineers from Becoming 'Bush Lawyers': The Art of Teaching Law to Engineering and Construction Students' (2009) 1(4) Journal of Legal Affairs and Dispute Resolution in Engineering and Construction 1-10.
Paula is a founding partner of DAPs Australia (www.daps.org.au) an organisation established to promote the use of dispute avoidance processes by the Australia construction industry.
In addition to her academic career, Paula is also a sessional member and mediator at the Victorian Civil and Administrative Tribunal, in the Building List.
She is a past Telstra Australian Businesswoman of the Year and in 2011 was inducted into the Victorian Women?s Honour Roll in recognition of her service to construction law and education.
Ong, B J
Brennan J. Ong
is a PhD candidate and Research Assistant at Monash University Law School. His thesis examines best practice in the avoidance and management of construction disputes. Brennan is also the Managing Editor of Construction Law International, a founding partner of DAPs Australia (www.daps.org.au).
Brennan has published extensively on the topic of dispute avoidance processes (DAPs), particularly in the form of dispute resolution boards (DRBs). Brennan?s research into how DRBs can be used to help parties avoid construction disputes has been published in a number of leading academic journals, including, 'Look Before You Leap: Avoiding the Traps and Maximising the Benefits of Your DRB' (2012) 28(4) Construction Law Journal 310-337 and 'DAPs: When will Australia Jump on Board?' (2011) 27 Building and Construction Law 4-29.
Brennan has presented papers at a number of industry conferences, including 'A Holistic Approach to Construction Dispute Avoidance and Management' (2013) at Thomson Reuter's Construction Law Masterclass (Melbourne, 28 May 2013) and 'Should DAPs be included in Standard Form Contracts?' (2011) at the Society of Construction Law Australia's Rethinking Adversarialism conference (Brisbane, 5-- August 2011).
Whilst Senior Associate to the Honourable Justice Vickery, Judge in Charge of the Technology, Engineering and Construction (TEC) List at the Supreme Court of Victoria, Brennan was the recipient of the 2012 Chief Justice of the Supreme Court of Victoria?s Innovation Award.
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