Management Of Conflict And Dispute Resolution Construction Essay

Introduction:

The nature of the building industry in Hong Kong is such that there is an bing struggle between the major building undertaking participants, proprietors, design professionals and contractors. The building industry is well-known for high degrees of struggles and differences.

Construction is building, and no affair how complicated the engineering. It is besides a project-based industry with each undertaking being alone. Within a undertaking life rhythm, a big figure of separate house are involved. Failures by one party can impact those engaged in a undertaking and, as work frequently takes significant periods during which national economic fortunes can alter, it is ineluctable that difference will originate.

From the above-named scenario, it should non be surprised that the techniques of struggle direction and difference declaration in building industry are more developed, compared to the industry, one might be inclined to inquire the inquiries as to whether there is any hope for the industry in trying to cut down the serious and extent of struggles and differences? Harmonizing to Fenn et Al ( 1997 ) , struggle can be managed, perchance to point of forestalling it from taking to challenge whereas, difference require declaration and, hence, are associated with distinguishable justifiable issue.

The intent of this paper will foremost depict the definition of struggle direction and difference declaration. And besides place the causes of the struggles and differences in Hong Kong building industry. Finally, this survey will besides place the manner of formal struggle direction and the difference declaration methods to be used.

2.Conflict Management in Construction Industry:

2.1-The definition of struggle direction:

Conflict may be defined as a competition between people with opposing demands, thoughts, beliefs, values or end. Conflict on squad is ineluctable ; nevertheless, the consequences of struggle are non predetermined. Conflict might increase and take to non-productive consequences or struggle can be beneficially resolved and lead to choice concluding merchandises.

Therefore, larning to pull off struggle is indispensable to a high-performance squad. Though really few people go looking for struggle, more frequently than non. Conflict consequences because of missing communicating between people with respect to their demands, thoughts, beliefs, ends, or values. Conflict direction is the rule that all struggles can non consequentially be resolved, but larning how to pull off struggles can diminish the odds of non-productive escalation.

Harmonizing to Algert, N.E. , and Watson, K. ( 2002 ) , Conflict direction involves obtaining accomplishments related to conflict declaration, self-awareness about struggle manners, struggle communicating accomplishments, and set uping a construction for direction of struggle in your environment.

2.2-The causes of struggle in building:

Construction is significantly different from fabrication, in which the same goods are produced a 1000 times. Besides, building does non let for the alteration of variable while keeping the remainder fixed in order to analyze its effects. The nature of the building referred to earlier so conflicts among proprietors, design professionals and contractors are general.

To propose that these parties are prone to confrontational interaction and struggle would be a major statement in the building industry.

Owners are even reasoning with their design professionals over design service explain of mistakes and disregard in design services rendered, aesthetic considerations and budget overproductions.

( p.4-white )

Consequently, Howell et.al ( 1998, cited by Vorster 1993 ) proposed a terminology of elements that summarize four causes behind struggle in the building environment:

Incomplete range definition:

The design professional ‘s duty to specify and plan the undertaking range so as to run into the proprietor ‘s functional, budgetary, clip and environmental undertaking standards. When the design professional fails to run into their duty, the proprietor is about ever dissatisfied with the consequence, with the consequence that rigorous correspondence shortly ensues between the parties. Besides, when the range of the work is ill-defined, this presents an unhappy relation for future between the proprietor and the contractor, reasoning about the range and quality of the work, and whether in fact the work is decently defined by the contract paperss prepared by the design professional.

Inappropriate contract type:

Contracts are endemic as causes of struggle within the building industry ; about every phase of the building procedure is regulated by an understanding of some kind. Some of the countries of contract difference are breach of contract in contract clause reading, review of work clauses, insurance clauses, payment of supplies, and liability to 3rd parties, merely to call a few possible countries of contract difference.

Poor communicating:

Infrastructures are alone merchandises with more complex production procedure than other and most of edifice merchandises are a combined attempt of several peoples or organisation. So many professionals have part to make a edifice in assorted capacities. Among building squad members, each may hold different purpose in relation to their profession, but their chief purpose should be to finish the undertaking within a given program. Conflict between squad members may originate when their aims are inconsistent. Besides, their readings of contract paperss, footings, and conditions can diverge, taking to disagreements and struggle. In short, all causes of struggle within an country are interrelated.

Uncertainty:

For external: a ) Environmental concerns ; B ) Social impacts ; degree Celsiuss ) Economicss ;

vitamin D ) Political hazards ; e ) Weather ; degree Fahrenheit ) Regulation ;

g ) Unforeseen site status.

For internal: a ) Mistake in design ; B ) Construction methods and craft

In figure 10.3 which is one illustration of what the proprietor should see when placing possible struggles. We can place which of them may be realized at the interfaces among the multiple participants in an bureau building direction bringing system. Certain struggles in the relationship among the proprietor, interior decorator, CM and trade contractor can be eliminated in assorted state of affairss if a different bringing system is selected.

( P.205-White )

2.3-Methods of struggle direction used in building industry in HK:

In the building industry, inquire anyone if they completed a building undertaking without any struggle. The reply 100 % of the clip will be “ NO ” . The successful undertaking directors must be implement schemes to avoid or supervise struggle in their building undertaking.

The undermentioned common stairss are used by the undertaking directors when developing a successful struggle direction:

Conflict designation ;

Conflict analysis ;

Design and execution of a struggle direction ;

Monitoring and reappraisal of the struggle direction.

( P.202-White )

Prevention is the best method in the direction of the struggle in building industry. The methods include:

Dispute reappraisal boards or advisers ;

Negotiation ;

Quality ( Entire quality direction and quality confidence ) ;

Procurement systems

which are all non-blinding procedure.

Baden-Hellard ( 1988 ) emphasized that building industry has a constitutional potency for struggle originating from the differences ever present in values, rules and involvement. Therefore, when differences arises from unanticipated events, no affair how good the clients, design squad and contractors have managed the undertaking, better methods of deciding the differences are needed.

Dispute reappraisal boards or advisers:

It is virtually impossible to finish a big building undertaking without holding any differences develop between the parties. The DRB is a panel of two impersonal persons who are selected by the parties to the building contract, normally the undertaking proprietor and the general contractor. The undertaking proprietor will qualify in the specifications for offering the undertaking.

DBR provide the procedures and mechanisms to non merely assist to settle differences but besides can supply a method to forestall the possible struggle from of all time go oning. The possible struggle to the DRB means that plausible statement at each building phases and the quality of the presentation of claims.

The first meeting of the DRB normally takes topographic point good before the beginning of the building undertaking and will go on to run into until the DRB members are well-known all of the facets of the undertaking. After the undertaking begins, each DRB will normally run into on a on a regular basis scheduled basic such as one time each month or one time each one-fourth, etc. Besides, site visit can ne made depending on the demands of the undertaking.

Negotiation ;

Negotiation demands to be transporting out to decide the struggle before it reached a more serious phase and alteration into difference. The parties are required to come together and near an agreeable colony through communicating.

The undermentioned two illustration shown a simple dialogue between the chief contractor ( MC ) and a subcontractor ( SC ) who is unable to run into the aim in the contract.

Example A:

Scandium: I will non be able to complete this procedure on clip.

Megahertz: You must be finish theses harmonizing the clip agenda.

Scandium: I need three excess hebdomads to complete it.

Megahertz: You can non hold excess three hebdomads.

Scandium: If I do non acquire three hebdomads, Is can non finish this procedure on clip.

Megahertz: No, you will finish as scheduled, if you truly can non complete it, we will roll up harm and replace you.

The illustration A is a position-based type of dialogue which will travel around in circle until one of parties wantonnesss its place. It is non clear why the parties are even reasoning.

Example B:

Bomber: I will non be able to complete this procedure on clip.

Megahertz: What are the grounds and why can you non complete as scheduled?

Bomber: My provider will non able to present the stuffs until following hebdomad so I need three excess hebdomads to complete it.

Megahertz: You should cognize the agenda is really tight for this undertaking. Are at that place any other providers who can present on clip?

Bomber: Yes, but the providers are more expensive than the amendss given by completing tardily.

Megahertz: Although you are responsible for making the mark, I besides understand your quandary. Actually, I know some other providers that might be able to work out these jobs and I will reach them every bit shortly as possible.

The illustration B is an interest-based type of dialogue which can be reached a reciprocally agreeable solution even the beginning of the struggle is uncovered.

Harmonizing to these two illustrations, a successful dialogue should ensue in a solution acceptable to both parties that will non damage their relationship and implies coaction, trust and common aims.

Quality ( Entire quality direction ( TQM ) or confidence ) :

Harmonizing to Gardiner et Al ( 1992 ) , the most confliction phases are identified within the organisation, closely followed by the issue of quality and control. One of the most confliction phases is the quality issue so a good and suited quality direction or control system should be issued. It can cut down the frequence of struggle.

TQM is an extended direction system which:

Focuss on meeting proprietors ‘ demands by supplying quality services at a cost that provides value to the proprietors ;

Is compel by the pursuit for uninterrupted betterment in all operations ;

Understand everyone in the organisation ;

Observe an organisation as an internal system with a common aim instead than as single parties moving to maximise their ain public presentations ;

Emphasize teamwork and a high degree of workers.

Procurement systems:

The procurance system is one of most effectual methods in bar of struggle so it should be located in the earlier phase of the undertaking life rhythm.

Harmonizing to Bennett et Al ( 1990 ) , the procurance system built up the functions and relationships, which constitute the organisation. It establishes the overall direction construction and systems, which helps to organize the overall values and manners of the undertaking.

The Procurement System for Construction provides support for:

Choice of appropriate procurance and catching schemes, and nomination of an appropriate Principal in the contracts ;

Preparation of stamp paperss and contracts based on standard signifiers ;

Choice of contractors and advisers with proved public presentation records ;

Effective direction of contracts, including clause commentaries, sample letters and checklists ;

Care of an effectual public presentation direction system through monitoring and coverage ; and

Resolution of contractual claims and differences.

( NSW Government ( 2000 ) , Procurement system for building. Available from:

NSW Government, NSW Government Procurement

Web site: hypertext transfer protocol: //www.nswprocurement.com.au/Procurement-System-for-Construction.aspx [ Accessed: March 13, 2011 ] . )

3.Dispute Resolution in Construction Industry:

3.1-The definition of Dispute Resolution:

Dispute declaration is about placing the root causes of struggle and preventing and pull offing struggle with the intent of deciding differences or struggle during the building procedure in order to avoid post-construction claims, judicial proceeding, and related costs.

Harmonizing to Whitfield ( 1994 ) , resolve debate can utilize either informal declaration methods such as dialogue and alternate difference declaration ( ADR ) or formal declaration methods such as judicial proceeding and arbitration.

3.2-The causes of difference in building:

Disputes are frequently the result of ailment considered procurement patterns, unequal preparatory planning and design activity, or hapless undertaking and commercial direction processs.

If the struggle happened in building site, all parties are agreed to each other. There is no farther struggle because aims of both party become same. But if one or both party becomes adamant, so the struggle may turn to a difference. In other word, differences are come up when parties are unable to pull off their struggles decently. Dispute can be defined as a dissension between parties in connexion with their aims.

Construction failure may make difference between the parties in building sites. Harmonizing to Feld and niggler ; Kaminetzky ( 1997 ) , failure during the building stage may include:

1 ) Overloading.

2 ) Improper impermanent supports.

3 ) Inadequate planning and executing of building procedure.

4 ) Lack of review.

5 ) Insufficient safety factors.

6 ) Inadequate preparation of building workers.

Feld, J. and Carper, K. ( 1997 ) . Construction

Failure. John Wiley & A ;

Sons, New York.

Cause of client:

1 ) Failure to react in timely mode.

2 ) Inadequate following mechanisms for RFI ( Request for information ) .

3 ) Reluctant to look into for constructability, lucidity and completeness.

4 ) Discrepancies / ambiguities in contract paperss.

5 ) Poor communications between and among the parties involved in theproject.

6 ) Failure to name an overall undertaking director.

7 ) Lowest monetary value outlook in battle of contractors and interior decorators.

The absence of “ squad spirit ” among the participants.

8 ) Deficient direction, supervising and coordination attempts on the

portion of the undertaking.

Cause of interior decorator:

1 ) Failure to understand its duties under design squad contract.

2 ) Over-design and undervalue the costs involve.

3 ) Inadequate in unfastened and factual communicating.

4 ) Late information issued and cumbrous attacks to RFIs

5 ) Design and specification inadvertences and mistakes or skips ensuing

from uncoordinated civil, structural, architectural, mechanical and

electrical designs.

6 ) Incompleteness of pulling and specifications.

Cause of contractor:

1 ) Inadequate contractor direction, supervising and coordination.

2 ) Lack of apprehension and understanding in contract procurance.

3 ) Failure to understand and right bid or monetary value the plants.

4 ) Reluctance to seek elucidation.

5 ) Failure to program and put to death the alterations of plants.

6 ) Inadequate CPM Scheduling and update demands.

7 ) Delay/ suspension of plants.

Fenn et Al ( 1997 ) provides a outline of the findings of nine often cited

surveies of the beginnings of differences:

3.3-Methods of difference declaration used in building industry in HK:

Harmonizing to Carmichael ( 2002 ) , the measure attack to challenge declaration as below.

I ) Negotiation at undertaking degree

two ) Negotiation at higher degree

three ) Alternative difference declaration ( ADR )

four ) Arbitration or Litigation

An effort is made to decide the difference at the degree at which it occurs, in a sensible clip ;

If this fails, affect parties at a higher degree with determination doing authorization, and the possible to settle in the involvements of a commercial solution ;

If this fails, continue to an ADR attack utilizing and independent 3rd party ;

If this fails, arbitration or judicial proceeding will be used.

3.3.1 Informal declaration methods:

a ) Negotiation:

Negotiation is a common difference declaration method, which we all are utilizing in every twenty-four hours. There is no impersonal 3rd party for the dialogue, merely the controversialists. It is besides defined as a agencies to make common understanding through communicating, harmonizing to Down, L.J. ( 2009 ) , ( p.140-white )

Negotiation is considered by most appropriate manner to decide any difference in building industry. It was because dialogue is non expensive and can be maintained relationship with the related parties.

However, there are besides negative sides of dialogue. For illustration, if the related parties negotiated a long and protected period of treatment, the dialogue will be fail because they are non blinding. Besides, it is an informal declaration method, it can let any surprise issue or irrelevant points lifting.

B ) Alternative Dispute Resolution ( ADR )

ADR is a corporate term used to depict methods of deciding differences which are options to judicial proceeding and arbitration and which normally offer a less expensive solution.

For illustration:

Mediation: This has appeared as an progressively used signifier of difference declaration, affecting a impersonal 3rd party working to ease effectual dialogues to enable a reciprocally acceptable colony.

In mediation, the parties explore options, mensurating the strengths and failings of their several instances.

Mediation can salvage a great trade of clip and cost in deciding a difference and can besides assist the parties to re-establish trust and prevent harm to on-going relationships.

Adjudication: This is a speedy and comparatively cheap manner of deciding a dispute.The adjudicator ‘s determination is usually upheld by the tribunals and so it is of import to guarantee that all the relevant facts are put in forepart of the adjudicator.

Adjudication does non needfully achieve concluding colony of a difference because either of the parties has the right to hold the same difference heard afresh in tribunal.

However, experience shows that the bulk of adjudication determinations are accepted by the parties as the concluding consequence.

( Powell, J. David. 2005. Boundary Dispute Resolution in England & A ; Wales Surveyors and Lawyers Working Together to Decide Problems. Proceedings of Cairo: Egypt. )

( Add chep lak kok adr table, refer to white book )

Because of the undermentioned possible advantages, it is deserving sing utilizing ADR early in a case or even before you files a case.

Advantage of ADR:

Better communicating ;

Continued concern relationship ;

More options for colony ;

Reduced costs in accomplishing colony ;

Confidentially

Control of result and the procedure.

3.3.2 Formal declaration methods:

a ) Litigation

On occasions, alternate difference declaration processs are non successful in deciding differences, ensuing with the parties fall backing to formal judicial proceeding through the tribunals.

Harmonizing to Whitfield ( 1994 ) , the procedure of judicial proceeding is from the issue of a writ to a hearing and so on to a judgement. One of the failures of the legal procedure has been the velocity with which canvassers have been prepared to publish writ. After writ has been issue, the complainant can non merely retreat his writ and bury the affair. If he did so, the counterclaim would be found against him along with the cost.

The related building companies need to supply judicial proceeding support services for both formal judicial proceeding and alternate difference declaration as follows:

Programme hold analysis ;

Forensic research ;

Preparation of statements of claim and statements of defense mechanism ;

Paralegal support.

B ) Arbitration

Harmonizing to Ashworth ( 2005 ) , Arbitration is a legal technique for the declaration of difference outside the tribunals. The parties refer the difference to a impersonal, knowing individual ( arbiter or arbitrational court ) who so gives the concluding determination ( award ) to which both the parties agree.

Arbitration, in stead of tribunal proceedings, as the last resort to deciding differences in building contracts has been normally used in Hong Kong every bit good as internationally.

Although intended to be a less formal and more flexible alternate to judicial proceeding, arbitration can be as thorough and time-consuming as judicial proceeding, particularly for building differences.

The related companies should be employ the expertness in stand foring them in arbitration proceedings and managing the whole arbitration procedure from the assignment of arbiters, outlining of pleadings, covering with interlocutory proceedings through to the hearing phase and beyond.

Where necessary, attorneies who experienced in building differences to supply the most comprehensive services to the company in arbitration.

4. Decision:

Each building undertakings are alone and complex projects. A alone set of drawings and specifications are used to depict each building stages. The drawings and related paperss by and large performed by a general contractor and several subcontractors, many of whom have non work together antecedently. The alone facets of each undertaking and the alone fundamental law of each building squad are common grounds for dissensions to happen.

Disputes can be generated in any environment ; so, struggle can happen whenever two persons try to work together. These differences frequently concern subjects such as alterations, differing site conditions, holds, and payments.

Many research workers had attempted to find the causes of struggle and differences within the building industry.

Besides, H. Murray Hohns ( 1979 ) leads to the decision that the specific causes of the struggle and difference can be mostly traced to the following five beginnings:

1 ) Mistakes, defects or skips in contract paperss ;

2 ) Underestimate of the cost – by the client, the contractor, or both ;

3 ) Changes in conditions, ( e.g. unanticipated land conditions ) ;

4 ) Claims from end-users ( legal rights of proprietors and renters ) ;

5 ) Peoples involved in the building procedure.

When confliction is arise in the building industry, the importance of proper struggle recovery method and conformity with formal processs can non be over-stressed. If differences proceedings become ineluctable, it should be some comfort to cognize that proper alternate difference declaration will be a favourable status instead than a drawback.