DISPUTES in the infrastructure sector can occur for a variety of reasons including:
- Project uncertainty
- Unrealistic expectations
- Project complexity
- Process problems
- Incomplete documentation
- Stakeholder disagreements
- Poor communication
- People management issues
- Opportunistic and vexatious behaviour.
No one sets out to become embroiled in a dispute, but over the course of an infrastructure project lifecycle a dispute is where many of us will end up.
Instead of focusing on how to avoid infrastructure disputes (sometimes, you just can’t), we will instead centre this article around ways in which you can manage them if they do arise.
Balance Advisory are experts in offering sophisticated offsite infrastructure advice and part of our suite of services is the capacity to assist in negotiation, risk mitigation and dispute resolution. We have a proven track record of representing parties in substantial and highly-complex disputes across Australia and beyond.
Dispute resolution refers to the processes by which disputes are brought to an end via:
- negotiated outcome – where parties agree to resolve the dispute between themselves
- mediated outcome – where parties use the services of an independent mediator to help them arrive at their own agreement, or
- arbitrated or adjudicated outcome – whereby an independent arbitrator or court determines how the dispute is to be resolved and makes a binding decision or order to this effect.
The method for resolution we outline today will take into account all of the above.
At Balance Advisory, our best practice model in dispute resolution includes ensuring parties reach a fast, fair, confidential and transparent resolution process.
Resolving disputes in a timely manner is key, as their existence raise many potential costs of the monetary and non-monetary variety, including:
- Legal fees
- Productivity loss
- Relationship loss and
- Reputation damage
Over time in this area of dispute resolution specialty, Balance Advisory has learned a lot about the dispute resolution landscape and we’d love to share our 5 Top Tips for Managing Infrastructure disputes with you.
This might sound like a no-brainer, but you’d be surprised how often parties get a fair way down the road in dispute territory before both truly understand the crux of the dispute.
Best practice dispute resolution requires both parties to understand every detail of the dispute. Ask yourself:
- How and when did the dispute arise?
- What grounds are the dispute built on?
- Which stakeholders does the dispute involve?
- What legal or regulatory laws or standards does the dispute involve?
- What are the short-term effects of the dispute?
- What are the long-term ramifications of the dispute?
It is useful to ask yourself all of these questions and jot down the answers.
Are there any of these questions you can’t answer?
Make sure you seek immediate clarification.
As a party to the dispute it is your responsibility to ensure you gather as much information as possible to ensure you have a clear understanding of the dispute.
It is possible you may need to engage a negotiator to assist you to do this, even in the early stages.
Unfortunately, things are most hostile as a dispute is getting off the ground as often at this point the communication between parties has completely broken down.
The more information you have about all sides of the conflict, the better placed you will be to ensure its speedy resolution.
There is the need for more cost-effective and time-efficient resolutions of infrastructure disputes, and the only way these can be ensured is if they are facilitated by experts.
Disputes that are not handled professionally grow in severity and become more costly every day. These disputes can be very damaging to project outcomes and the reputation of you and your business.
With professional dispute resolution you can tackle conflict while it is still small and manage your cost risk from the outset.
Correctly handling disputes requires parties to mitigate risks and ensure the bankability of their projects by working together fairly and professionally at all steps in the process.