Dispute Resolution procedures such as arbitration and adjudication, by their very nature, generally happen too late. By the time a formal dispute resolution procedure is implemented, lawyers may have been instructed, costs may have racked up, commercial relationships damaged, and positions could already be deeply entrenched. Completion of the project will probably be delayed and reputations in the marketplace are likely to have been soured.
Conflict management and early intervention techniques, on the other hand, recognise the inevitability of conflict and involve the parties in establishing, at an early stage, how their disagreements will be handled. The objective of these techniques is to focus minds on solving problems, and in doing so early enough to avoid escalation into full-blown disputes.
Conflict management techniques are about being realistic and pragmatic, and they work best when applied early to address issues in the early stages, before they get out of hand.
The UK construction industry has long had a reputation for conflict that is evidenced in a catalogue of litigation and the widespread use of adjudication. The Royal Institution of Chartered Surveyors (RICS), for example, appoints around 1400 adjudicators each year to resolve dispute in the UK. It is perhaps questionable then, that in an industry where disputes are part of life, and where parties readily use adversarial methods to resolve them, there would be a genuine desire to embrace conflict management and early intervention.
There is, however, increasing evidence of attempts by decision-makers and influencers within the industry to develop methods for reducing conflict and managing relationships. RICS has been working with several major organisations who are embracing new procedures for managing conflict and “nipping in the bud” issues that might otherwise snowball into full blown disputes.
Various processes are being explored, and used, by industry bodies. Standard forms of contracts are being amended to include what you might call “rules of engagement” for dealing with issues as they arise. Clearly defined ground rules are being written into contracts with the intention of helping to sort out problems immediately and thus maintain positive relationships.
The range of conflict management and early intervention techniques currently in use include: Dispute Boards (DBs), Conflict Avoidance Panels (CAPs) and Early Neutral Evaluation (ENE). These are measure that are already being used in international markets. And, as the industry embraces a culture change in the way it deals with conflicts, more fresh techniques will be developed and used in the coming years. Conflict avoidance and management techniques are different in terms of how they operate in practice, but they all have similar characteristics, such as:
- They are not concerned with attaching blame. Conflict avoidance/management is about separating people from the problem that needs to be resolved. The techniques focus on the facts and principal matters that need sorting, not on personality issues.
- Adversarial dispute resolution procedures, such as arbitration and adjudication, often exclude key people. Lawyers take control and decisions are escalated to only those at the highest levels of organisations. Conflict management and early intervention techniques often include the use of a neutral third party who actively engages with people who are involved in a project at every level. The process encourages and recognises their input and gains their support for getting matters dealt with quickly, amicably and to everyone’s satisfaction.
- At the heart of nearly every dispute is almost always a communication problem. Conflict management techniques enable honest and clear communications between participating parties. By encouraging structured, open and straightforward relationships conflict is resolved more easily. (The techniques will also reduce likelihood of conflict in the first place). It understandable that a party, faced with a difficult problem or issue, will often want to avoid confrontation. Conflict management and early intervention techniques enable parties to air difficult issues, and deal with them frankly, fairly, and directly. This approach works well when communications are facilitated by a third-party neutral, who is, and is seen to be, independent, whilst also being authoritative and credible.
- Key to the success of conflict management techniques is party engagement with the process in the early stages, before it gets out of hand. Conflict situations are more difficult to resolve as time goes by, and the longer an issue remains unresolved the greater the chance it will escalate out of control.
Whatever procedure parties use in their contracts to manage and resolve conflict situations, they should generally include seven essential components:
- A methodology which spotlights problems as they occur, and triggers the implementation of the contractual mechanism for dealing with them.
- A procedure for diagnosing and obtaining agreement between the parties on the nature of the issues to be resolved.
- A substantive process for examining the issues and generating solutions (usually with the assistance of a neutral third party or panel). This could result in advice, guidance, recommendations or binding decisions, depending on the needs and wants of the contracting parties.
- High quality and trusted third party neutrals, who are trained and assessed in the relevant conflict management early intervention techniques that the parties have agreed to use.
- Information and guidance for contracting parties on how the process works. This should be more than a clause in a contract. There should be a commitment to educate stakeholders about the process that both informs them and helps to achieve their buy-in.
- A commitment by all parties to allocate the necessary time and resources to enable the process to operate effectively.
- A system to evaluate the process using such criteria as efficiency, cost, durability and overall satisfaction of outcomes. A process may need to evolve over time and modifying it based on regular feedback from individuals affected, will help to sustain it.
Martin Burns
Head of ADR Research and Development
Royal Institution of Chartered Surveyors
26 August 2025