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ReSolution | June 2020
may become so if the parties’ communication (or lack thereof) lets them down.
Rather than looking at the appointment of a mediator to the dispute with a defeatist attitude (i.e. the parties are inevitably going to end up in dispute), the appointment can be taken out of the context of dispute resolution and reframed as the appointment of a mediator to the agreement. The rationale and focus for the appointment then shift from the “inevitability” of a dispute to maintaining healthy relationships and communication between the parties.
Mediator to the agreement
Large construction contracts make great use of Dispute Boards to ensure that disputes – as and when they arise – do not interfere with the critical path of the project. The Board decides which disputes to resolve along the way (and then does so) and which disputes can be held over to the end of the project and on what terms. The Board’s involvement keeps the construction project on track.
Dispute boards are mostly used in complex, high–value construction projects. The Board is created by contract and the decisions can be either binding or non-binding. The Board can stay active throughout the contract with regular site visits and meetings with the parties in order to proactively identify and resolve issues before they escalate into disputes and, where necessary, make formal determinations. The alternative is a Board that determines disputes only as and when they are referred to it.
I am advocating a similar application in the mediation/facilitation sphere. That is, the parties use the assistance of a neutral, objective, trained mediator to assist them to resolve all issues that may potentially derail their relationship and therefore the contract. This form of dispute avoidance is proactive, effective and has the best chance of maintaining and developing the relationship between the parties.
Singapore Dispute Protocol
An example of this concept and practice is the new Singapore Dispute Protocol launched in October 2018 which is aimed at minimising time and cost overruns in large infrastructure projects. The intent of the Protocol is to assist parties involved in mega infrastructure projects to manage their disputes and minimise any risks associated with overruns. The Protocol is part of the efforts to establish Singapore as the infrastructure hub of Asia.