While it is reassuring to lawyers that the courts reserve the right to correct errors of law, for the main protagonists in construction disputes, owners and contractors and all those standing behind them, the frequently subtle distinctions argued by lawyers using arcane language wear the patience and strengthen a growing suspicion that these legal niceties are being established at their expense, with little real benefit to them.

Ultimately, the parties want a successful project.  With a few notable exceptions, in large construction projects, this can be hard to achieve without disagreements arising.  Sadly, the traditional method of competitively tendering projects  with maximum certainty for owners at considerable cost to the contractors who participate makes some level of disagreement an inevitability.  What is frequently missing in such contracting is any focus on avoiding disputes from arising in the first place.  It is the aim of project mediation to identify potential disputes as early as possible, and deal with them before the parties’ positions become hopelessly entrenched.

This paper was prepared in September 2007 and was used as the basis for an article in the October edition of The NZ Lawyer dealing with alternative dispute resolution.