GUEST COMMENTARY

Time, cost, quality, health and safety. Key ingredients of any construction project, but tension between them so often results in disputes. It is therefore no surprise to see the classic battlegrounds of time and money top of the survey list, in a year when projects such as HS2 and Crossrail caught the headlines for the very same reasons. Quality and health and safety also featured in 2019, notably in the search for answers to the cladding issues raised by the devastating Grenfell Tower fire.

So, once again, we see the same problems: late, over budget, defects, and, featuring at the top of this year's survey, whether the contract administrator got it right and whether the contractor/subcontractor understood and met its obligations.

Whatever the construction dispute, if there is no agreement, someone has to decide who will pay for it all. Just who may, ultimately, have to be decided by an adjudicator, judge or arbitrator. They may also be asked to put right any contract misunderstandings and decide how the contract really should work.

But, does the new COVID-19 world present an opportunity to do dispute resolution differently?

While there is ample scope for legal debate in COVID-19 related disputes about frustration and what "force majeure" could mean, might commercial considerations now be more prominent? If parties want to continue working together and resume performance as soon as possible, where neither is at fault and both have suffered, understanding on both sides will be required. Is collaboration, rather than confrontational legal battles, a better way forward?

Survey respondents identified a willingness to compromise as the most important factor in the early resolution of disputes. This report considers how a collaborative approach might work and, in light of the new industry guidance produced in response to COVID-19 (including the new CAC pledge, the CLC best practice guidance and the government's own guidance on fair and reasonable contract behaviour), the construction industry is certainly being encouraged to find out.

It is clear that after COVID-19 things will never be the same. Whether the same will be true for dispute resolution remains to be seen.

SALLY DAVIES
Managing Partner, Mayer Brown International LLP (UK)