Early Dispute Resolution in Construction: Why Expert Input Matters Before Positions Harden

Construction disputes can take on a life of their own. An issue that begins as a disagreement over a variation, delay or payment can develop into a much larger commercial problem once correspondence becomes entrenched and the parties start preparing for formal proceedings.

For construction lawyers, the challenge is often to establish the client’s position early enough to make informed decisions about resolution. That requires a clear understanding of the contractual issues, the factual evidence and the likely financial and programme consequences.

Early dispute resolution can help contain costs, limit disruption to the project and preserve commercial relationships. The key is to understand the dispute before it becomes more difficult and expensive to resolve.

“The earlier the parties understand the strength of their respective positions, the more informed their decisions about resolution can be.”

Establishing the Facts Before Positions Harden

Construction disputes often involve competing accounts of what happened. A contractor may attribute additional costs to late information or disruption, while the principal points to contractor performance, existing delays or inadequate substantiation.

These disagreements can be difficult to resolve while the parties are working from different assumptions.

A forensic quantity surveyor can assess the contractual basis and value of claimed costs, examine variation assessments and identify where the supporting records do or do not establish entitlement. A delay expert can investigate the effect of relevant events on the programme and assess whether they delayed completion.

That work can give lawyers a more reliable basis for advising clients, testing the other party’s position and deciding whether negotiation, mediation or formal proceedings are appropriate.

The experience gained from cases such as V601 Developments Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2021] VSC 849 and White Constructions Pty Ltd v PBS Holdings Pty Ltd [2019] NSWSC 1166 is relevant here. Both decisions illustrate the importance of grounding delay opinions in the project’s actual circumstances and evidence. Identifying a suitable methodology is only part of the task; the analysis must also explain what happened and establish the consequences.

Bringing that discipline into a dispute at an early stage can expose weaknesses, narrow the issues and help the parties assess the risks of continuing.

Making Early Resolution Work

The contractual framework matters. Clear variation procedures, notice requirements and dispute escalation provisions give the parties a process to follow when disagreements arise. Regular communication can also help identify emerging issues before they become formal claims.

For larger or longer-running projects, dispute review boards may provide a further mechanism for addressing issues as they arise, subject to the contractual arrangements and the parties’ willingness to use the process.

Expert involvement can support these measures by providing an independent, evidence-based assessment of the issues in dispute. That does not mean every disagreement requires a full expert report. Sometimes a focused review of the relevant records, programme or cost build-up will identify what needs to be resolved.

The appropriate level of work depends on the dispute, its value and complexity, and the decisions the client needs to make.

“Good early advice gives the client a clearer view of the claim, the exposure and the options available.”

Resolving the Right Issues

Early resolution is not always possible, and a firm position may be necessary where the evidence or contractual entitlement is disputed. Nor should speed come at the expense of proper analysis.

The aim is to identify the real issues, understand the evidence and give the client a sound basis for deciding what to do next. Sometimes that leads to an agreed outcome. In other cases, it narrows the issues that need to be determined through adjudication, arbitration or litigation.

For construction lawyers and their clients, early engagement with experienced quantum and delay specialists can make that process more focused. It allows decisions to be made with a better understanding of the likely costs, time implications and evidentiary risks before the dispute becomes more entrenched.

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At Accura Consulting, our team of experts work with clients to create a tailored solution to problems. If you have an issue and want expert support, get in touch.

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