Oh! the woes we could have been spared but for a construction time claims standard...
I have for the past two days, spent my time on a tormenting mediation process on construction time claims, which failed substantially in its mandate to reach amicable settlement on an important, longstanding and pending dispute for the parties involved.
When confronted with this procedural tipping point, it once again confirmed what many of us already know: Dealing with construction time claims in dispute resolution or otherwise, is agonising.
Firstly it takes a substantial amount of time for parties to get to a reciprocal understanding of-, and agreement on the terminology used when discussing time claims. As an example, what meaning can we derive from the word delay in the context of a time claim dispute? Does it refer to the difference between the actual completion date and the initial baseline date or does it refer to the difference between the former and the revised completion date. I have seen parties arguing for days and weeks stunned, when I point out to them, that they both use the term delay with a different meaning in mind.
Secondly, parties habitually struggle to grip the fundamentals of CPM scheduling or again have vastly differing methods and application techniques acheter cialis pas cher en ligne. I have found in many dispute resolutions that even seasoned professionals and arbitrators have very different ideas and techniques on how to compile, understand or manage a proper schedule. The standard forms of contract, also provide no substantial guidance on the prerequisites and good practice principles of scheduling. In our particular mediation I was constantly substantiating the fact that many supposed conditions and requirements for schedules are unilaterally added without these finding a basis in any of the contractual documentation.
Last, but not least are the methods used to calculate or substantiate a delay and the resulting contractual significance for the parties in terms of cost, the relief- or application of penalties. This is particularly agonising if there is only one delay claim practitioner in the room.
Usually parties start off by bounding about between differing, unconventional and peculier methods to substantiate their claim. Thereafter follows a discussion on the utter confusion caused by whatever is presented. Subsequently parties reach a point where they have confused themselves. This typically results in a renewed bout of explanations, drawings and new methods, never before seen. In some instances the schedule assists the parties, in others it is so deficient in logic and good practice principles that it cannot be used at all.
Sitting back inside this gripping atmosphere of confusion I realised that in a number of instances, even astute dispute resolution practitioners get lost in the fodder of time claim disputes. Most planning professionals or delay claim experts have knowledge of the principles laid down by the Delay and Disruption protocol (Society of Construction Law, 2002). However I have yet, in more than 10 years of professional practice and dispute resolution proceedings, to meet a dispute resolution practitioner who made reference to the Protocol, let alone applied the principles contained therein. Naturally it must be noted that the SCL Protocol was never drafted into any of the standard forms of contract and has not been incorporated into the industry by practitioners or formalised in any manner. However, it is still regarded as an excellent standard on the methods to be used by practitioners in their assessment of the extension of time claims and I would assume any astute dispute resolution practitioner to be knowledgeable in its principles. There are also the CIOB’s good practice guide, PMI’s guide and a number of other publications, all aiming to create at least some form of standard for use.
Hence I plead, in an attempt never again to dwell the depths of delay confusion: let slip and spread the time claim and scheduling standards for all! #standardsforall