Risk and liability allocation are perhaps the most fundamental, and certainly in the eyes of some clients, the most important parts of the formation of any construction contract. JCT, NEC and FIDIC all have their own unique approach to the conduct of the parties.
JCT, for example, opts for a more structured approach to risk allocation, which has its own merit in that everyone is made aware, unambiguously, of their responsibilities and their allocated risk.
This is in stark contrast to the approach of the NEC, which emphasises collaboration, clarity, and flexibility in project management.
But what if we could still promote the values of collaboration and pro-active dispute management, no matter what contract you choose to develop your project? That is what the Conflict Avoidance Process, or "CAP", is aimed at achieving. This UK Government endorsed process is a form of Alternative Dispute Resolution that can be written into a contract or utilised on an ad hoc basis by agreement between the parties.
The process entails a panel of either one or three specialists, depending on the complexity of dispute and the size of the project, who will produce a non-binding result. These specialists can be chosen by agreement or be appointed by RICS. This can happen when the dispute arises, meaning a specialist with an expertise in the area concerning the dispute can be selected, producing a fairer and more practical result.
Unlike court or arbitration proceedings, the process is not adversarial. The CAP champions each party's co-operation throughout the process and focuses the conversation on achieving a solution that makes the best practical sense for the benefit of either party.
This philosophy is exemplified in the pledge itself; the pledge begins with a commitment to "working pro-actively to avoid conflict and facilitate early resolution of potential disputes". There are five other aspects to this pledge all within a similar vein, however, signing the pledge itself is merely symbolic. Len Bunton (the chairman of the Conflict Avoidance Coalition Steering Group ("CACSG")) emphasised in Barton Legal's April 2024 webinar: "You have got to ensure that in taking a project forward, the Conflict Avoidance Process is implemented into what's going on at the site, if issues arise."
Over sixty individuals and organisations in both the public and private sector, including contractors such as Transport for London and Network Rail, are involved in the CACSG, as well as many professional bodies, including RIBA and RICS, all of which champion these values. By way of testament to its impact, the new parliament and refurbishment project has included the CAP in its contract.
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