Conflict Management
Conflict management in plant construction and infrastructure projects is handled to a large extent by arbitration proceedings. As these are often expensive and time-consuming, for some time now there have been increasing efforts to use alternative dispute resolution (ADR) methods such as adjudication, dispute boards, mediation, etc. For more information on the various procedures and methods, please click on the gray boxes below.
My Services
I act as an arbitrator in arbitration proceedings and as a neutral third party in the aforementioned ADR proceedings. I am active in national and international proceedings and in both administered and non-administered proceedings (by a dispute resolution institution). I also advise as a lawyer on project management and in the context of disputes. In addition, I offer seminars and training courses on dispute resolution and plant construction issues.
Dispute resolution procedure in detail
Arbitration
Differences of opinion and disputes in plant construction projects are undesirable, but to a certain extent unavoidable. From the point of view of the parties involved, they should be resolved as quickly as possible, especially in order not to jeopardize project execution. For obvious reasons, they should also be resolved as cost-effectively as possible. I am aware of this from my many years as a corporate lawyer and I try to take this into account. Arbitration has a long tradition as a means of dispute resolution in plant construction projects. It also plays an important role in construction projects, even if case law is still of great importance here. However, it should be noted that not only do court proceedings take a long time, but now also arbitration proceedings, which generally last three years and sometimes significantly longer. They are also very expensive, mainly because of the fees for external lawyers and experts. The German Institution of Arbitration (DIS; see www.dis-arb.de), the German Society for Construction Law (www.dg-baurecht.de) and the International Chamber of Commerce (ICC, see www.iccwbo.org), for example, offer rules of procedure for arbitration tribunals. As an arbitrator, I not only endeavor to work towards a legally convincing and appropriate result, but also to ensure that the arbitration proceedings – in consultation with the parties – are conducted fairly and equitably.
Alternative dispute resolution in general, adjudication, dispute boards
Alternative or out-of-court dispute resolution procedures can be considered as alternatives to arbitration. The English term is Alternative Dispute Resolution; the abbreviation ADR is also commonly used in German. These include adjudication and dispute boards in particular. In adjudication, a third party appointed by the parties or a neutral designating body – the adjudicator – makes a provisionally binding decision after a summary procedure lasting only a few weeks or months, which can still be taken into account in the ongoing project. The adjudicator may or may not be a lawyer; he or she may also be an engineer or a construction manager – depending on which issues are at the forefront of the respective conflict. See, for example, the DIS Arbitration Rules (www.dis-arb.de), which are adjudication rules, or the SL Bau (www.dg-baurecht.de) of the German Society for Construction Law. A dispute board is a committee that is usually set up at the start of a project, when there are no disputes, and usually consists of three members. An interdisciplinary composition of lawyers, engineers and construction managers is typical and sensible. Since it can already familiarize itself with the project to a certain extent at the start of the project and since it is already appointed when conflicts arise, it can act very quickly to resolve differences of opinion and disputes informally or by recommendation or provisionally binding decision. See, for example, the Adjudication Rules of the DIS (www.dis-arb.de) or the ICC DB Rules (www.iccwbo.org).
Mediation etc.
Mediation should also be considered as a means of conflict resolution in construction and plant engineering. The aim here is for a neutral third party to help the parties find a negotiated solution as part of a structured process. Mediation regulations are offered, for example, by the DIS (www.dis-arb.de), the IHK Munich (www.muenchen.ihk.de) or the IHK Darmstadt (www.darmstadt.ihk.de), the EUCON (www.eucon-institut.de) or – internationally – the ICC (see www.iccwbo.org). A neutral expert opinion (see the Rules of Expertise of the DIS, www.dis-arb.de, or the Rules of Expertise of the ICC, see www.iccwbo.org) may also be considered. The DIS’s conflict management procedure should also be observed. If a project does not have a dispute board accompanying the project and the parties cannot agree on an ADR procedure in the event of a conflict, they can attempt to find a suitable ADR procedure within the framework of the DIS conflict management procedure with the help of a neutral third party – the conflict manager. The conflict manager has no decision-making authority, but can at best make recommendations. See DIS Conflict Management Rules at www.dis-arb.de. However, if a party is dependent on an enforceable, legally binding title, the only remaining option is arbitration or court proceedings as a last resort, whereby the international enforceability of arbitration awards is generally better than that of court judgments.