Retired partner, King & Spalding LLP

Full-time arbitrator and mediator, JAMS Global Engineering & Construction Group

Conflict is inherent in traditional construction project delivery systems and dispute resolution practices. However, the construction industry has increasingly recognised the importance of co-operation and trust between project parties and has experimented with various methods of reducing conflict and adversarialism in project delivery and dispute resolution. How and to what extent have these efforts been successful? Will these trends continue? If so, what are the implications?

Reduced to fundamentals, the traditional construction industry contractual arrangement for project delivery has been the Design-Bid-Build model where the design professionals enter into a separate contract with the owner, who in turn separately contracts with the general contractor, who, in turn, contracts separately with the various trade contractors, suppliers and vendors. Variations on this basic arrangement have included contractors taking on the role of a programme or construction manager, either with or without contractual risk for the delivery of the project; or, where the contractor or the design professionals take on design, construction and procurement roles in the nature of Design-Build or Engineer-Procure-Construct arrangements. Regardless of the project delivery structure, each of the parties to the traditional arrangement has had fragmented rights and obligations, and most often differing interests, goals and objectives, all of which was a fertile ground for conflict and disputes.

In the 1990s, various movements, often labelled with acronyms, appeared on the construction scene to improve both the quality of construction and