Practical tips for dealing with disputes on construction projects quickly and efficiently. Negotiating tips and techniques.

1. Techniques for Resolving
Disputes Quickly and Efficiently
Seema Lal
PBLI – March 31, 2016

2. “Peace is not absence of conflict, it is the ability
to handle conflict by peaceful means.”
Ronald Reagan
“The harder the conflict, the more glorious the
triumph.”
Thomas Paine

3. • Disputes are likely to arise in almost all construction
projects
• Having clear and effective dispute resolution clauses
will assist in minimizing disruptions to the schedule if
and when a dispute arises
• Generally speaking, the parties will engage in
discussions and negotiations prior to moving into
more formal dispute resolution processes

4. • The keys to avoiding a dispute include:
– Identifying the problem or issue as early as
possible
– Taking action to address the problem or issue as
soon as possible
– Keeping the focus on the specific problem or issue
at hand
– Maintaining an open line of communication with
the other party

5. • Negotiation best practices include:
– Being prepared
• This includes having access to and reviewing all of the
relevant information and documents relating to the
dispute, as well as seeking opinions, if appropriate,
from consultants or outside experts
• Need to ensure you are familiar with and adhering to
the contractual provisions, in particular, notice
provisions

6. – Flexibility
• If the goal is to resolve the dispute as efficiently as
possible so as to avoid disruptions in the project
schedule, both parties must maintain a degree of
flexibility in their positions
• The utterance of threats or ultimatums will likely lead
to a termination of the negotiations and, at worst, a
potential termination of the Contract and ensuing
litigation/arbitration

7. – Understanding the position of the “other side”
• Communicating an understanding of the position of the
other party and attempting to find some common
ground will go a long way toward an early resolution of
a dispute
• Understanding the other party’s objectives will assist
you in preparing a proposal that attempts to meet
those objectives without significantly compromising
yours
• Will also assist you in assessing the merits of your
position

8. - Looking at the dispute objectively
• May be effective to include senior representatives (or
other senior members not intimately involved with the
facts underlying the dispute) in negotiations as these
individuals will be able to view the disputed issues with
some level of objectivity
• Take emotion out of the equation

9. - Develop and understand your “BATNA”
• Developing and understanding your “Best Alternative to a
Negotiated Agreement” will assist you in assessing and
testing the strengths and weaknesses of your position
• Developing your BATNA early in the process will assist you
in establishing the best negotiation strategy to reach your
settlement goal
• Understanding the other party’s BATNA will also assist you
in your negotiations

10. - Recognizing the End
• At some stage in the negotiation process, it may become
clear that you are not prepared to make any further
concessions or compromises and are prepared to take the
claim to the next stage of the dispute resolution process
• If it is clear that there is no hope for resolution, best to
terminate negotiations at that point and proceed with
your BATNA

11. QUESTIONS?
Seema Lal
SHK Law Corporation
sl@shk.ca
604.408.2026