CONFLICT AVOIDANCE PROCESS
The conflict avoidance process (CAP) is an early intervention mechanism in construction and engineering projects to ensure that issues that are emerging are resolved by the parties involved, without recourse to costly and time-consuming disputes resolution processes like adjudication. There is no doubt that we are now seeing growing interest in CAP and several projects are now seeing provisions embedded into building contracts so that the process will become the norm, and not the exception.
In Scotland, for example, there has been excellent support for Construction Industry Collaborative Voice and the construction organisations like the Scottish Building Federation; SELECT; Civil Engineering Contractors Association; Scottish and Northern Ireland Plumbing Employers’ Federation; Building Engineering Services Association and the finishes and interiors sector have all signed the Conflict Avoidance Pledge and have encouraged their membership to do likewise. So far over 475 construction organisations throughout the UK have signed the pledge and members of CICES are encouraged to do so. Interest is also growing in Wales, Northern Ireland and in Ireland as well.
The whole ethos of this is to allow the parties to work proactively to avoid conflict and to encourage collaborative working and to work together to identify potential disputes and to work to resolve these. In most of the cases that have been carried out to date, this has involved the input of a seasoned industry consultant, drawn from any discipline, who will work with the parties and come up with a series of binding, or non-binding recommendations and anecdotally the process has been very effective in resolving issues between the parties and in allowing them to carry on and complete the projects in a spirit of trust and mutual cooperation.
In addition to the above the Conflict Avoidance Coalition Steering Group, comprises about 85 or so organisations who are involved in driving the process forward and in particular are encouraging procuring authorities to have a provision for CAP in contracts. The steering group is reaching into all sectors including transportation, rail, nuclear, water and utilities, power, civils, health, education, defence and commercial projects.
There have been some significant developments across the UK as well. CAP was successfully trialled by Transport for London on about 20 projects and the outcomes were a significant reduction in the extent of contractual claims and the costs that the employer had incurred in defending these claims with its consultants and lawyers. The Construction Playbook has endorsed the use of CAP and the Scottish Government has also encouraged public sector procuring authorities to use conflict avoidance processes to get matters resolved. Discussions are underway with the Welsh Government, the Northern Ireland Assembly and in Ireland. It has recently been announced that the UK Parliament refurbishment and restoration project will embed CAP into consultants and construction contracts for the duration of the project which will last for many years.
It is encouraging to see the latest edition of the JCT 2024, whilst not referring to CAP, is however promoting the use of more collaborative techniques to deal with the resolution of construction disputes and projects. It is therefore very clear that momentum is growing across the UK and members of CICES are encouraged to sign the pledge and to implement this into their dayto-day activities and encouraging the use through their supply chain.