In Arabic, we say ‘معظم النار من مستصغر الشرر’ - which in English translates as ‘the largest fires start from the smallest sparks’. In searching for English language quotes with similar meaning, I came across the phrase ‘A little neglect may breed great mischief'[1].
In this article, I consider in my opinion, the relevance of this phrase to the dispute resolution process in construction and engineering, and how easier the lives of construction professionals would be if we address and attempt to resolve issues as we go, to avoid a much bigger issue, aka a ‘fire’, further down the line. I also refer to a further relevant Arabic phrase of ‘لا تؤجل عمل اليوم الى الغد’ which translates into English as ‘don’t postpone today’s work until tomorrow’.
Author: Khalid Yousri, Regional Operations Director, Middle East
I can relate, especially given my experience of construction projects and dispute resolution in the Middle East, that the majority of the disputes initially start from relatively small matters which could have been discussed and dealt with at that the time when they arose. However, postponing the resolution of these matters, or at the very least agreeing on a way forward or solution, typically makes it much more complicated and difficult to deal with in the future. Before you know it, the matter remains unresolved many years later with little evidence available and or people still around with knowledge of the issues to tell the story as it actually was, never mind assisting in resolving the issue or issues.
‘لا تؤجل عمل اليوم الى الغد’ which translates into English as ‘don’t postpone today’s work until tomorrow’.
Let’s consider an example which I hope you can relate to, an employer / engineer requests the contractor to change the electrical distribution board (“DB”) in a meeting room of a commercial building (note I have not said how the instruction came about or how it was transmitted to the contractor…). Thereafter, further change was instructed to change the walls in the same room, and then again later, further changes were instructed to change the false ceiling, the raised floors and during that same period the contractor experienced inclement weather conditions, and some days of labour strikes.
If the changes arising from the first instruction, in relation to the changes to the DB were not dealt with separately when they arose, it will be much more difficult at a later time to identify the exact impact of the DB changes, especially when additional events subsequently impacted the same area.
To achieve success on a project, every aspect of project management and administration ought to be monitored and managed efficiently. In my view it is often key to change the culture of the project parties and the supply chain so as to deal with the issues as and when they arise and avoid postponing the discussions and therefore the solutions. Despite our musings of not letting the mischief grow, in the Middle East generally the approach of ‘let’s wait to the end, and sort it all out together’ is adopted.
However, in my experience more often than not, things do not all get resolved amicably at the end of the project. Many promises made either by the employer or by the contractor related to resolving all the matters at the end fall apart when the project is completed. The worst outcome for the parties that I frequently see is that when the promises that were made that all disagreements would be resolved at the end of the project, and that does not happen, then the parties very quickly commence formal dispute resolution proceedings.
When parties escalate their disputes in this manner it is usually the case that a different and possibly new team deals with the case. This can sometimes involve external consultants, experts, and lawyers.
If this occurs, then it seems to me that the missed opportunity of addressing and resolving the issue or issues at the time they arose directly results in the parties incurring significant additional costs to now resolve those issues which have usually become more complex to deal with. The other common issue is that by now with the dispute being more complicated and involving larger sums of money it probably requires higher levels of decision makers to deal with it than otherwise would have been needed had it been addressed at the time.
The principle of early resolution of issues on a project is dealt with to some degree by the SCL protocol, 2nd edition for delay and disruption, 2017, which in core principle number 4 recommends “Do not ‘wait and see’ regarding impact of delay events (contemporaneous analysis)”. Despite this referring to issues of delay and assessment of their impacts on the project, I cannot see why this would not equally apply to disputes in general.
In conclusion, I am sure that this topic warrants much more attention in the Middle East, including convincing the parties to construction or engineering contracts to consider and deal with emerging issues at the earliest opportunity to help avoid where possible embarking on later protracted and costly formal dispute resolution processes.
There is an inherent fear in the Middle East construction market, although this could be said to be more far reaching than that, that construction professionals dealing with projects worry that relationships can be ruined by exercising contractual rights and administering contracts correctly and timeously. I would suggest that they ought to bear in mind that the contract is there to help them to manage and regulate the relationship and at the end, any ‘difference of opinion should not spoil the relationship' - ‘الاختلاف في الرأي لا يفسد للود قضية’.
This article was originally written for issue 29 of the Diales Digest. You can view the publication here: https://www.diales.com/diales-digest-issue-29
1. Benjamin Franklin - Poor Richard's Almanack, 1758