Hi Rafael

You asked - The majority of the Contractors I know prefer going directly into the Courts of Law. Which is your preference, Adjudication, Mediation, Arbitration, Courts of Law or a combination?

My preference is sorting the problem out as and when it happens - by mutual negotiation - before entrenched positions block common sense.

The real problem is that in the UK the Architect has to act as quasi adjudicator when any problem arises. He is not likely to say "sorry guys I screwed up there - here is a big EOT award" because it would rebound on his PI Insurance.

If I have to go for an incompetent Architect I will always try to give him a contractual bolt hole to wriggle through.

Best regards

Mike Testro.

Mike

Mediation in the US is a non binding process while Adjudication in the UK I understood is binding. So is neither Mediation nor Arbitration, another boy in town?

ALTERNATIVE DISPUTE RESOLUTION IN THE UK

It seems like Adjudication is not necessarily binding, similar to Mediation but the Adjudicator makes the decision. Not bad on paper.

I believe AIA (American Institute of Architects) Standard form of Agreement has a mandatory arbitration clause. The problem with this is:

a) It is binding.
b) Cannot be appealed (unless under very few circumstances Courts of Law will upheld Arbitration).
c) No need to follow strict jurisprudence makes it highly unpredictable.
d) Decisions are not published like in the case of cases reviewed under Courts of Appeal.
e) You not only pay your lawyers but also the arbitrators which in some cases can be very expensive.

I am not sure but believe in Public Contracts Arbitration is ruled out.

The majority of the Contractors I know prefer going directly into the Courts of Law. Which is your preference, Adjudication, Mediation, Arbitration, Courts of Law or a combination?

Best regards,
Rafael

Mike

I have no problem at all when you verify the “common sense” approach with what the CPM says. I believe CPM is the scientific way, maybe not perfect but better than “common sense” alone. Common sense is based on perception, and perception can be deceiving.

It worries me when the parties do not look at the scientific approach as something might be overlooked. It might be against the Owner when concurrency is not taken into consideration and duplicity might occur when evaluating separate delay events. It might be against the Contractor when the effect of limited resources is not considered into the overly simplified analysis.

Some of my clients who use the CPM as a true management tool do never call me for a delay analysis, so delay events are seldom added to the CPM as if all analysis is to be performed retrospectively. I hope they are on the safe side and that some of the overlap in delays events is granted twice in their favor.

By the way all of my clients prefer going into Court than Arbitration, they all say it is unreliable and expensive. I always supposed Arbitration as the way to go, under the hands of experts, seems like perception can be deceiving.

Best regards,
Rafael

COMMON SENSE

At the USA and the UK seems like the trend is in favor of specifying prospective methodologies. But these are at times contested.

Prospective v Retrospective: Delay analysis techniques are either ‘prospective’ or ‘retrospective’. Prospective analyses refer to the future, and seek to determine the likely impact of actual progress or a particular event(s) on project completion. Retrospective analyses refer to the historic, and usually seek to determine the actual impact of events upon progress and completion.

BEWARE THE DARK ARTS

TECHNIQUES AND METHODS FOR ASSESSING DELAYS

Please be advised UK and USA standards and definitions at times do differ. There is a lot of confusion about the names for the techniques in the USA that AACEI generated a paper on the issue complicating even more the naming with awkward composite names, the document I found it to be such a disaster I would call it BS. The confusion happens also in the UK.

Here in the US and its territories is very common to specify Time Impact Analysis. I use Asta Development definition as a special case of TIA because here there is also a lot of confusion, so with specifications that lack a clear definition of what do they refer to TIA I use my interpretation, a simplified TIA as documented in some references. Keep in mind that when a Contract clause is not clear then it is interpreted in favor of the party who did not write the contract document as long as it is reasonable.

TIME IMPACT ANALYSIS – AS APPLIED IN CONSTRUCTION

AN OVERVIEW OF THE ANALYSIS OF CONSTRUCTION DELAYS

Biting my teeth’s I got to accept Mike is right in technical terms, but in practical terms difficult to understand by those who will make the decision; the Owner, the Architect, the Inspection and a few others who will evaluate the proposed EOT. More often than not I find our EOTs being superficially analyzed and resolved using “COMMON SENSE”, this I don’t like but this is how it happens, this is the real world. I suppose in our courts the same do happens.

Best regards,
Rafael

Hi Shahul

The most acceptable delay analysis method is the one that works best in any particular case.

That is not a glib answer.

The main skill of a delay analyst is to know what method to use as well as how to use it.

As a rule of thumb:

As Built v As Planned - use for sub-contract delays where work is sandwiched between other sub-contractors.

Impacted as Planned - use when construction is in progress - it is particularly relevent in NEC3 contracts.

Time Impacted - use for forensic analysis - its success depends entirely on the quality of the As Built and other records.

As Built But For - never use under any circumstances.

Windows / Snapshot - now superseded and rarely used in the UK.

Best regards

Mike Testro