Civil Engineering Reference
In-Depth Information
Experts' reports are often important in construction disputes. They
help to clarify the issues and identify the key areas of difference. But the
important work is done well before the mediation and their best role in a
mediation is to stay away, and perhaps be available on the telephone in
case something does arise that needs their input. Alternatively, if they do
attend, then it is worth ensuring that they have their say in the opening
joint meeting and then suggest they leave, for it is almost certain that
they will be asked to say little thereafter.
8.5
Consultants
There is a difference between experts and consultants. In this con-
text I mean consultants as architects/project managers/engineers/
valuers/quantity surveyors: people who have been involved in the
project but who are not either the party or the expert. In some cases
they may fall into the next category of supporters - people who were
at the 'coal face' of the project and who have an interest in the dis-
pute, and probably its outcome. Whether serious or not, the threat of
professional negligence is invariably present. Decisions made during
the project come under scrutiny and consultants find it hard not to
become defensive. The fact that those decisions were probably made
in the client's best interest at the time ceases to be relevant when the
other parties in a dispute are seeking to lay blame on anyone other than
themselves.
So, again, it is not always best for consultants to attend the medi-
ation. They may well help in reinforcing their party's version of the
truth, of recounting the history, but their use becomes limited in struc-
turing a commercial settlement. After all, if the dispute is over delays
and extension in time claims, an architect or project manager is un-
likely, even for the purposes of the mediation, to grant a further ex-
tension in time. Similarly, a quantity surveyor who has been resisting
claims or rates for work is unlikely, for the purposes of the mediation,
to suddenly agree. So there is a danger that whilst, as with experts,
their historic knowledge of a project may be useful, their usefulness be-
comes limited and potentially a barrier to settlement as the mediation
progresses.
It is really important that the decision maker has the support of the
team in any eventual settlement and sometimes it can be quite difficult
for consultants to support a deal that concedes matters that they have
resisted in the past.
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