Normally, it doesn’t bode well when lawyers enter a room with planners, building owners and construction companies. In this specific case, however, no cliché was used; instead, potential conflicts along the planning and construction processes and possible solutions were discussed openly.
The event was hosted by Specialist Group Construction Mediation SDMa member of the Swiss Mediation Association, which has been committed to the sustainable strengthening of mediation and mediative action in society, business and politics since its foundation in 2000.
The specialist group, for its part, consists of construction experts and lawyers who have many years of experience in dealing with and resolving conflicts. This wealth of experience was incorporated into the individual presentations and the panel discussion at a one-day event with around 100 participants in the Kursaal in Bern under the motto “Address, Avoid, Manage”.
Over 30 new individual conflicts in the construction industry every day
Professional conflict management in planning and construction is becoming increasingly important – one rarely hears of construction projects where there are no disputes about costs, deadlines or quality. Recently, a group consisting of a civil engineer, a client and two building contractors looked at the conflict potential of the Swiss construction industry.
Using statistics and their own experience, they came to the conclusion that in our industry over 12,000 individual conflicts are resolved each year, absorbing around 600,000 man-hours worth over CHF 90 million. Against this background, two questions arise: firstly, how can such conflicts be avoided? And secondly, how do you deal with conflicts that cannot be avoided?
There are several answers to the second question. The simplest is probably: the parties involved resolve the conflict among themselves. But often the people directly involved are unable to find an amicable solution among themselves. In the best case scenario, a mediating and impartial third party can help, in the worst case scenario, you end up in court.
The members of the Construction Mediation Specialist Group are committed to preventing conflicts in the construction industry in advance or to resolving them through mediation or arbitration – both methods outside of legal disputes.
Communication and clear rules
The main focus of the most recent event in Bern was on avoiding and dealing with conflicts. The spectrum of those potentially involved in conflict in the construction industry was reflected in the line-up of speakers: from the client representative to the construction manager, the civil engineer, the general contractor, and the specialist and lawyer, many perspectives were represented. As different as these roles and the associated tasks are, many agreed on the core of the matter.
First of all, there is the certainty that disputes are fundamentally unavoidable, but they significantly impair the efficiency of our industry. This makes it all the more important to actively participate in finding solutions, to invest energy and creativity in them and to keep room for maneuver open.
In some cases, it can be worthwhile to separate the conflicts from the project business using a defined escalation process. Disputes usually involve various aspects, mainly technical and legal. Disputes are often due to one-sided contract clauses – whether these are conditions for the award procedure or the formulation of individual provisions in the contract that are practically impossible to implement. As one presentation showed, new forms of cooperation such as project alliances could help here.
Furthermore, many speakers and event participants named open and factual communication as the most important success factor for conflict-free collaboration and constructive handling of conflict situations. This is actually not surprising, as disrupted communication inevitably leads to conflict.
The same applies to a lack of mutual appreciation. The basis for avoiding this is, for example, clearly defined communication channels, areas of responsibility and authority; in short, rules that are bindingly anchored in a project management document such as the project manual.
One speaker also called for more direct, personal contact in communication between those involved and for telephone calls to be strengthened as a means of communication.
Opportunities for conflict resolution and prevention
The final panel of the event once again showed what contribution mediation and arbitration can make in conflict situations. Even though a lawyer had previously stressed in his presentation that lawyers, in accordance with their professional ethics, are clearly mediators for solutions and not for disputes, the participants’ experience showed that disputes can be settled in a much shorter period of time through arbitration or mediation than through legal proceedings.
Specifically, mediation techniques can resolve conflicts in a few months, while legal disputes can drag on for years. The invited experts also had good advice on prevention. For example, joint project reviews in the planning team at the end of a phase can help to reflect on past conflict situations and possibly anticipate future ones.
And sometimes simple methods like an after-work beer for all planning teams can help strengthen the sense of community in the interest of the cause. Here’s to fewer conflicts in the construction industry!
Further information on Construction Mediation Specialist Group under baumediation-sdm.ch
Program and presentations to the event Download here
(Password: BauMedTagung20240613).
