How to succeed in complicated construction disputes

John FFF O’Brien, principal consultant at John Farage O’Brien, tells John Murphy how he generally succeeds for his claimant clients in more complicated construction disputes taken to mediation and conciliation — where the parties remain in control

John Farage O’Brien, a well-established firm of contract claims and dispute consultants, has spent most of the past two decades providing an expert consultancy and support service to domestic and international construction clients.

I asked principal consultant John FFF O’Brien how he achieves such success for his claimant clients in more complicated construction disputes, especially in areas where the parties still retain control of the process, at mediation and conciliation.

John FFF O'Brien

“We find that most adversarial groups we meet across the table normally possess an unbalanced weighting of knowledge and understanding across what we describe as the ‘four core construction industry disciplines’ and it is in the art of properly balancing the influences of these disciplines across the relevant facts we find resolution to many disputes.

“We have often found this imbalance to have been driven, typically, by a single alpha personality group member, possessing limited knowledge of perhaps only one or two of the core disciplines. Typically, these would be an entrenched designer who on the one hand cannot put his/her buildable design intent on paper but on the other hand insists that the contractor should have priced it and built it, or an overly opinionated lawyer who should stick to conveyancing or a consultant expert of one sort or another who is not the expert he or she purported to be. They are normally the alphas who have been given ‘too much rein’ by their client!

“This is where we often find our opponent’s weak point and naturally, that is the point where we will attack.”

O’Brien explains that the four core construction industry disciplines that entwine into every construction dispute in different measures and weightings are (1) Commercial, (2) Contractual, (3) Legal and (4) Technical. Technical, he adds, is split into two sub-categories, Design and Construction Methodology.

“Each discipline is but the tip of its own tall Christmas tree, with hundreds of branches spreading out below. Having to understand potentially thousands of underlying issues, enmeshed within all four disciplines is precisely what makes construction disputes inherently complex to assess and resolve, especially to those who are fluent only in one or two of the core disciplines (and whose fluency in those disciplines can often blind them to the importance of the others!).”

“Conciliation or mediation is often the first time that the paying party on the other side of the dispute sees their position being rigorously stress-tested. In our experience, many such paying parties, having seen for the first time the limitations of their entrenched alpha team member, and realising how incomplete their grasp is of the four disciplines, begin to see the settlement as a much more attractive option.

To get to a strong position of certainty before a dispute can be settled is an iterative process that requires constant input from a party’s team, which includes weighted inputs from witnesses of fact, experts, consultants and lawyers, says O’Brien.

“The team needs to remain dynamic to react (and perhaps re-adjust its position) to the inevitable issue of new information from the opposition, by way of submission papers, pleadings, particulars, or from plenary sessions with the third-party neutral.”

“The party receiving this new information needs to be receptive to objectively weighing its worth, and feeding results into a live risk register that is constantly updated to assess how the party’s position is either getting stronger or indeed getting weaker. A party with a clear and unjaundiced view of its own case’s strengths (and weaknesses!) will also do better in negotiation, as the scope for surprise and the need for rapid re-assessment is radically reduced.”

I asked if similar considerations apply at adjudication or arbitration hearings.

“As soon as parties enter into the arena of the short and sharp process of statutory adjudication under the Construction Contracts Act 2013, they have lost control of their dispute to a third-party neutral,” O’Brien points out.

“Having your dispute crystallised and weighted objectively across the four disciplines, is paramount before pulling that trigger to refer. It is simply too late to do so for the first time under the quickfire demands of one of the Minister’s panel adjudicators, (using his/her powers and specialist knowledge to ascertain facts and matters in your case that are required for his/her decision in 28 days).”

“If your dispute gets into the arbitration arena, then all party control is lost, and your fate now lies 100% in the hands of a third-party neutral, with very little scope for any further appeal or challenge – finding out your weightings at that stage is much too late.

“Our advice is to get good advice early and remain in control,” O’Brien concludes.