Friday, August 24, 2007

ALTERNATIVE DISPUTE RESOLUTION: KNOWLEDGE, SKILLS AND PRACTICAL TRAINING FOR QUANTITY SURVEYORS

Mahindarjit Singh & Assoc. Prof. Mohd Fisol Zain
Universiti Technologi MARA

This paper was presented at QS National Convention 2003, 18-19 August 2003 at Sheraton Hotels and Towers, Subang Jaya, Selangor, Malaysia.

ABSTRACT
Alternative dispute resolution process in respect of disputes arising in the construction industry is in use everyday in Malaysia by the aggrieved parties. The advantages of this process far outweigh any disadvantages advocated against it. Time has come for Quantity Surveyors to engage in this process by equipping themselves with the knowledge, skills and simulated practical exercises so as to be able to provide professional services domestically and internationally to parties aggrieved. This paper will address the issues of education and training of Quantity Surveyors in Alternative Dispute Resolution and attempt to propose that Quantity Surveyors are able and capable to be Negotiators, Mediators, Conciliators, Adjudicators, Arbitrators or Expert Witnesses as the case may be. Universities offering qualifications in Quantity Surveying must move along with the developments taking place in the construction industry as far as dispute resolution process is concerned to create an enthusiastic interest in this area of expertise so that a holistic basic qualification will provide the younger Quantity Surveyors with the required tools to go on further to achieve the above qualifications. Simultaneously, Universities must also embark on providing short courses in respect of Alternative Dispute Resolution processes to contractors, sub-contractors, clients (whether public or private), and suppliers of building materials so that all these parties who are involved in the construction industry may be able to adopt a more efficient and prudent method of resolving disputes when faced with one. It is apt to say that educating and training all the above parties will eventually result in a more harmonious and friendly industry, which in turn will benefit the society at large as well as bring economic growth to the country.

KEYWORDS: Alternative dispute resolution, knowledge, practical training, skills.

INTRODUCTION

Alternative Dispute Resolution (ADR) is by far becoming a fashionable treatment for a common ailment in the construction industry during the last decade, namely disputes or differences. It is not the type of dispute but the different methods of resolving the dispute that is the focal point of the term “alternative dispute resolution”. Disputing parties in the construction industry have always been worried about taking their disputes to the civil courts because it is formal, costly, time consuming, complex, confrontational and takes a long time to conclude. These factors are the result of the adversarial system of justice applied in the civil courts. In the adversarial system, parties introduce each piece of evidence (whether oral, documentary or real), argument or point against each other to prove their case on a balance of probabilities before a judge, who pronounces a decision that usually leads to a win/loose result. The theory behind this underlying philosophy of adversarial process is that the truth of a dispute will surface and thereby justice will be done. However, there appears a perception in the construction industry that this formal adversarial process is used tactically to create delay and force an unfavourable settlement on the financially weaker party.

It was to alter this weakness that ADR came to the scene. ADR stresses that parties could resolve their disputes by bringing in a skilled third party, who is usually an experienced professional in the particular industry. The benefits that flow from bringing in this skilled third party includes better communication, continued business relationships, better management of the dispute, more options for settlement, less formal, private hearing, speed, reduced costs, and confidentiality. Skilled third party intervention alters the paradigm of any dispute as well as ensures that the disputing parties begin to communicate more effectively and to focus on problem solving and settlement.

Further, the pressures in today’s construction industry, the construction of fast track building, coupled with the endless disagreements over collateral and sub-contract terms and warranties, mean that inevitably some construction contracts are signed long after the workmen enter the site. Sometimes no contract is signed at all. What happens in the interim if a dispute were to arise? Well, ADR enables the parties to come together in a common arena regardless of the written contract because the skilled third party can use his own technical knowledge, skill and experience to help the parties achieve a settlement of the dispute.

In the construction industry, a Quantity Surveyor (QS) is one of these skilled third parties who could be brought in to resolve a dispute using one of the ADR methods. This is because the QS is a specialist construction industry professional, whose vocation is to prepare a statement of the contemplated activities, materials and construction costs in accordance with a standard method of measurement. Further, he is also well versed with all the clauses in the standard form of construction contract. In order for the QS to take on this role of a skilled third party effectively and efficiently it is imperative that the QS gain adequate knowledge, skills and practical training in the area of ADR.
This paper will address the issues of knowledge, skills and practical training requirements for QS so as to equip them with the necessary tools for the resolution of disputes using one of the ADR methods. The question that also needs to be addressed is how QS can assume the role of achieving the efficient conduct of dispute resolution. In the past the role of the skilled third party has been to use his expertise to resolve disputes as presented by the parties. Today, however, the skilled third party has to deal with skilled lawyers whose task is to preserve all the rights and interests of their clients, even though this may not be conducive to efficiency or cost effectiveness. Thus, whatever the position was in the past, skilled third parties today require specific skills and techniques beyond those of a mere independent third party. What is suggested is that the training of skilled third parties must shift emphasis from primarily towards obtaining a sufficient appreciation of the law in respect of ADR to a new, more positive, acquisition of skills and techniques. This is likely to require the development of specialist third parties, whose main vocation is to resolve disputes.

KNOWLEDGE

Universities offering qualifications in Quantity Surveying must ensure that their curriculum incorporates the topic of ADR, where students would be exposed to all the different methods of resolving disputes. In this context, students would gather knowledge in respect of the mechanics of each of these methods as well as the advantages and disadvantages of each such method.

In the construction industry, standard forms of contract provide clauses outlining the different methods of resolving disputes. These different ADR methods include negotiation, adjudication, mediation and arbitration. The vital difference amongst all these methods is that only an arbitration award is binding and enforceable.

Most construction disputes concern either a breach of contract or a breach of a duty to take care. The claims that arise out of the former are contractual whilst the latter are tortious. Hence, it is important for graduates qualifying with a degree in Quantity Surveying to understand the dichotomy of contractual and tortious claims. Substantive subjects like contract and tort must thus be included in the curriculum of these graduates so as to enable them to appreciate, understand and apply the vital elements as well as the defences available when faced with such claims. The teaching of these subjects ought to be undertaken by someone with experience in the construction industry so that real case studies could be used in disseminating knowledge. A mere theoretical lecture on these subjects should be avoided, as graduates would be required to apply knowledge of these areas in practical situations. In University Technology MARA, we teach these subjects to our students by way of the case-method, inter alia, the reading, understanding and application of real case studies taken from binding past precedents. In this way, students are better prepared to apply knowledge to given factual situations, and this will inevitably assist them in the resolution of disputes when called upon as skilled third parties.

On the other hand time has come for Universities to also educate contractors, sub-contractors, clients (whether public or private), and suppliers of building materials in respect of subjects like contract, tort and ADR by running summer short courses. Here, the focus of teaching these subjects ought to be the dissemination of factual knowledge. Educating and training all the above parties will eventually result in a more harmonious and friendly industry, notwithstanding that disputes could still occur now and then, which in turn will benefit the society at large as well as bring economic growth to the country. This inference is drawn from the fact that “the learning together should lead to working together”, which is the ultimate formula for a win-win solution.

It is suggested that the Institution of Surveyors Malaysia (ISM) must also play a more active and positive role by embarking on a continuing professional education programme for its members. It is suggested that topics such as ADR, contractual and tortious claims be included in such a programme so that their members will be kept abreast with any changes taking place in these areas. In this way whatever the graduates have learnt in the Universities will be up-dated and hence will equip them to deal with disputes more effectively and efficiently.

SKILLS

Training is a particular kind of activity or process that is designed to equip graduates with the necessary skills for a job. Training refers to the imparting of proficiency in a particular skill. Hence, ISM should take the lead to provide the requisite training to QS in ADR. Issues like interpretation of contractual documents and correspondence between parties, identifying the dispute(s), and ability to point out the different claims or counterclaims each party is making against the other can be learnt from specific training programmes run by ISM for their targeted audience. It is highly recommended that experienced practitioners of ADR be invited as trainers. Practical examples could be used to effectively develop the skills involving the interpretation, identification and analyzing of a dispute and claims arising therefrom. One ought to bear in mind that skilled third parties are mere judges of fact. It is thus vital that graduates be trained to differentiate between facts on the one hand and the juxtaposition of exaggerated facts on the other.

Universities on the other hand can undertake practical courses in ADR to enhance the skills of graduates. This may take the form of a workshop, or group practical exercises where participants are required to take an active role in the whole ADR process and hence gain the necessary skills. As working graduates will be the targeted audience, participants in the workshop or group practical exercises will gain added value from the discussion of the many questions as well as difficulties encountered by them whilst in practice. In this way QS would have gained the requisite skills in ADR and will be an asset to the construction industry in that they will be able to fit the role of the skilled third party to resolve disputes that arise in any given project.

PRACTICAL TRAINING


Practical training is vital to enable the QS to apply the knowledge and sharpen the skills acquired from the Degree programme as well as workshop or group practical exercises undertaken at Universities.

Stage One of the practical training will utilize a given construction dispute where the issues such as the dispute, the claims and counterclaims, the material facts surrounding the dispute, and any available defences would be identified.

The next stage is to conduct a practical exercise, something akin to the real dispute resolution procedure. Here, the dispute will go through all the stages of the chosen method of resolution, to wit, negotiation, adjudication, mediation, or arbitration. The procedure adopted will be based on the ADR Rules of the CIDB, PAM, IEM or Malaysian Institute of Arbitrators.

The final stage will be to conduct a post-mortem of the whole exercise and brainstorm on the errors made, lessons learnt as well as whether the mode of resolution was appropriate. It is suggested that the practical training conducted as above will give the QS a holistic approach to dispute resolution, thereby qualifying them as the skilled third parties.

At this juncture, it would be wise for the Universities or ISM to seek accreditation of their course, workshop, group practical exercises or practical training conducted as above from professional bodies like the Malaysian Institute of Arbitrators or the Chartered Institute of Arbitrators. Once accredited, it would enhance the opportunities for QS to engage in dispute resolution as yet another vocation.

It is imperative that ISM also adopts a set of ADR Rules for its members to use in any dispute for which they may be appointed as the skilled third party. It is suggested that the Arbitration Handbook drafted in September 1984 be up-graded and amended to the status of Arbitration Rules of ISM to suit the professional needs. This will bring ISM in line with all the other professional bodies that already have a set of ADR Rules. Also, it will provide QS with guidelines to act as a skilled third party in one of the ADR mechanisms.

REFERENCES
1. Alexander Bevan, Alternative Dispute Resolution, Sweet & Maxwell, 1992.
2. John Uff & Anthony Lavers, Legal Obligations in Construction, Construction Law Press, 1996.
3. John Uff & Martin Odams, New Horizons in Construction Law, Construction Law Press, 1998.
4. Peter Fenn & Rod Gameson, Construction Conflict Management & Resolution, E & FN Spon, 1992.

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