This reviewer did not require much persuading to review Dr Paula Gerber’s latest book, written with her colleague Brennan Ong, because they always bring a welcome freshness and perspective, and it was readily predictable that this book would be good.
In fact, it is not merely good, but startlingly good, and does exactly what it says on the cover, analysing how we may best avoid disputes, manage them and resolve them. In order to do this it ranges widely across the fields of psychology, analysing the theory of conflict, through the territory of project management, analysing how not only choice of procurement system but also other management techniques can be used to prevent conflict from escalating into dispute, and then deals with disarming frankness about the pros and cons of various approaches to the resolution of disputes.
Dr Gerber is well known for her persuasive and well researched endorsement of Dispute Review Boards and other Dispute Avoidance Processes, and it is hardly surprising that DAPs and DRBs have a central role on this stage. But this book is much more than a mere pamphlet for DRBs; there is careful and extensive treatment of other systems, such as the Dispute Resolution Advisor system that has been spearheaded by Professor Colin Wall in Hong Kong, as well as FIDIC-style DABs, CDBs, IDAPs, SEAs, ENEs and so forth. All of the acronyms are unraveled and made sense of.
It is not all gooey-eyed idealism. When approaches are criticised, the book analyses why they have not worked, and what can be done to fix their shortcomings. The book has this, for example, to say about partnering:-
“Partnering has been extensively criticised because the partnering charter is non-binding. The traditional construction contract which sits alongside the non-binding partnering charter is inconsistent with the letter and intent of partnering, and when problems arise, parties tend to look to and follow the binding contract rather than the non-binding charter. The failure of partnering, however, should not lead to a rejection of relational contract theory. Rather, it is necessary to explore alternative ways of giving effect to the theory. The next section explores ways in which construction contracts have, or could, give effect to the relation of contract theory.”
And indeed it does. The book goes onto give impressive statistics about DRBs: for example that since their inception in 1975, that they have been used on over 2,000 projects around the world with 98% of them being completed with no outstanding disputes. The book analyses the relatively unsuccessful use of DRBs on the Big Dig Project in Boston and analyses what went wrong in that case.
There are authorities quoted in the extensive footnotes for the legal content, including dozens of cases from around the world. But the analysis is far more than could ever be gleaned from merely looking at the law reports. Much of the supporting material is drawn from many papers delivered internationally by people who have “been there and done that”. Unless you have the time and leisure to travel the world attending construction conferences, it is extremely unlikely that you would have encountered all of this material before. There is no substitute for many years of experience, but this book goes a long way in that direction on this particular topic.
It is hardly surprising that Lord Justice Jackson has welcomed this book, and in particular its emphasis on dispute avoidance, nor that Professor John Uff has suggested that it should be “standard reading for any professional embarking on a construction project”.
For anyone with a heart the short quotations which appear at the heading of each section, from a wide variety of sources including the Dalai Lama, Albert Einstein and others, are a particular delight. Perhaps the most arresting of them is this one:
“I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.”
And this really sets the tone for the whole book. Far too many construction litigators hammer away, using their considerable talents running disputes before courts or arbitrators, and far too many front end lawyers spend far too much time devising provisions intended to give their clients the contractual whip hand, without pausing to consider whether these talents might be put to better use. We take it for granted that these are worthwhile things to do, without paying nearly enough attention to the consideration that the construction and engineering industries perform at their best when the parties cooperate with each other, and when conflict is prevented from escalating into dispute. It is not so very long ago that those of us whose professional home today is in the law would have fitted more naturally into the military, and we would have regarded it as axiomatic for conflicts to be resolved by force of arms. Now we much more often resolve conflicts by force of law. This book provides useful food for thought as to how succeeding generations are likely to take that transition a stage further, and replace one-sided contracts and litigation with much more intelligent and beneficial ways of handling conflict.
In the foreword, Justice Peter Vickery, who heads up the construction bench in Victoria, suggests that this book will “set the benchmarks for contemporary reform and further development in this field for many years to come”. He is very probably right.
Robert Fenwick Elliott
Barrister, Adjudicator and Mediator,
Howard Zelling Chambers, Adelaide