Dispute Management
A Knowledge-Based Project Management Approach

Dispute Management - The Management Approach

We adopt a "Management Plan" approach based on project management principles, which allows you to maintain control of the dispute process.

Experience shows that early resolution of disputes is achieved if the essential facts are identified to the parties. Early presentation of the facts in a form which can be clearly understood must therefore be the objective in any dispute management system.

Dispute Management requires management of both the technical and legal investigation. These two aspects are inter-related, and the process is essentially iterative. The process of dispute resolution is inherently uncertain because the facts are not clearly known at the beginning of the process. The difficulties of establishing the relevant facts cannot be easily identified at the outset. It is precisely because of this that the dispute process needs to be carefully managed if inefficiencies and unnecessary costs are to be avoided.

Our first step is to prepare a Dispute Management Plan. The Plan addresses the main obstacles to the success of the process such as the availability of evidence and the effort required to analyse the facts.

Once the Plan is implemented we constantly review the plan as the facts and the legal solutions develop. Prompt action is taken if a course of enquiry proves not to be cost effective.  It is essential to maintain flexibility. If the original Plan needs to be amended in the light of evidence, then the varied Plan identifies the budget cost and time implications.

The Dispute Management Plan identifies the members of the Dispute Team, including witnesses of fact, and the experts in both technical and legal matters.

Implementation of the Plan requires the potential legal solution to be assessed and investigated as the facts emerge. The Plan is only a framework to coordinate the events of the Dispute Team. It is still necessary to decide the most appropriate legal solution as the case develops.

Nevertheless our experience shows that the above project management approach leads to efficient resolution of disputes. 

Dispute Management - Documents

The resolution of complex technical disputes involves for the most part collation and analysis of facts. Efficient fact management requires all data to be easily traced so that at any stage of the dispute resolution, whether settlement negotiations or Alternative Dispute Resolution, the relevant fact supporting a statement can be retrieved.  In many disputes significant evidence is to be found in a large number of documents. 

Daniel Atkinson has successfully adopted different document management systems on different disputes, each chosen to meet the demands of the evidence available and the resolution forum.  Our first step is to provide a suitable file reference system for both existing and generated documents.  The main approach is to provide 

1. a relatively automatic method of registering documents, and
2. a reference for the narrative, cost schedules and analytical programme, and
3. a system avoiding extensive copying of documents during the investigation itself, and
4. a flexible method allowing the bundles of exhibit files to be prepared efficiently towards the end of the investigation.

Daniel Atkinson has used and designed  Electronic Data Management Systems ("EDMS").  When used correctly, an EDMS can be an invaluable tool to speed up every aspect of legal investigation, and by making easier the investigation reduces costs considerably. The idea behind the system is quite simple and straightforward, that is, to reduce all of the relevant documents for a particular reference to an electronic form.  It is important that the electronic evidence produced is verifiable as an unaltered copy of the original documents, if it is to be of any evidential value.  It is also important that the database of documents prepared can be indexed as the investigation proceeds and that legally privileged documents are protected. 

Dispute Management - Witnesses

Your people who have worked on the project for some time usually have a great deal of knowledge about the project.  It is vital in the resolution of disputes to identify the key people early in the process and use their knowledge to gain a proper understanding of the real practical problems and events.  This early involvement of witnesses can shape the direction of any investigation and dispute resolution.  We have adopted various management approaches to efficiently obtain such evidence at the early stages.

It is important to record the events witnessed by key people at an early stage by means of skeleton witness statements, once the main issues have been identified.  More detailed statements can be taken at later stages.

If a witness statement is to be of any evidential value it is important that it is the statement of the person involved, that it states his own views, that it is not affected adversely by the dispute situation and is relevant to the issues in dispute.

The management of witnesses and the taking of statements is an important part in dispute resolution particularly in adversarial systems.  The common practice, even in international arbitrations, is to rely on oral testimony to a great extent.  We provide such a service.

Dispute Management - Technical Experts

In many construction disputes, the analysis of events and an expert opinion on key issues is essential to success.  Proper management of this process requires evidence to be compiled and analysed using a cost effective approach and asking experts at the each stage the relevant questions for an opinion.  An understanding of the engineering involved, quantum issues and the process of delay analysis if required is vital.

Your people will in many cases have significant technical knowledge which experience shows needs to be used at an early stage, to narrow the issues.

We design formulae-driven templates for the collation and analysis of evidence to allow cost effective input of data whilst reducing errors.  Daniel Atkinson has successfully used computers with diagnostic analysis using spreadsheet formulae on a piling claim to demonstrate the loss of productivity on encountering unexpected rock.  The same technique was used to rebut a piling claim to demonstrate that the level of disruption claimed was excessive and in part due to inefficiencies.  An automatically generated chart is shown below:

The analysis of quantum based on linked spreadsheets designed so that original data is entered only once, with calculations based on spreadsheet formulae and with self generating charts has demonstrated the benefit of the approach by:

1. reducing errors of entry
2. allowing calculations to be repeated easily
3. providing transparency of calculation and
4. maintaining the evidential integrity of the presentation material.

This computerised diagnostic approach has allowed the complete analysis to be reproduced on CD Rom for presentation or further analysis by other experts and the dispute team itself - a particular advantage in international arbitrations.

Critical path network analysis has been used often in delay analysis together with database systems for ease of input of data.  The cross reference of dates to evidence is vital if the analysis is to have any evidential value.

Our management approach is to identify the issue which has to be proved and devise a structure based on the evidence available to achieve proof in the most cost effective way using modern and usually programmable techniques, based on the opinion and input of experts.

Dispute Management - Lawyers

Just as there are different technical engineering field, there are also divisions in law.  The following areas of law will usually need to be understood to achieve an acceptable resolution of the dispute

• Substantive Law, essentially contract law but also the particular field of construction law,
• Evidential Law and particularly the admissibility of and weight to be given to evidence,
• Procedural Law and particularly the law of Alternative Dispute Resolution such as Arbitration Law or Adjudication Law and the enforceability of any award or decisions and the Rules of Evidence which apply in the particular forum,
• Local or International Law and the effect these may have on the party's substantive rights and on the conduct of proceedings and the issue of enforceability,

The knowledge of Construction Law is important in the evaluation of entitlement, such as 

• the evaluation of disruption,
• recovery and calculation of overheads,
• how to deal with concurrent delays,
• the valuation of variations.  

In many disputes and particularly international disputes it is necessary to manage the legal experts who may be lawyers in different legal systems with different expertise and may include Counsel instructed to give an opinion or to act as advocate.  We provide that service.  Our knowledge of Construction Law, International Arbitration and the construction process provides an ideal focus for efficient management of the whole dispute process.

Daniel Atkinson has also acted as Advocate in arbitrations and as Adjudicator and Mediator which is an additional service and insight we are able to provide.