Disputes following construction unfortunately happen far too often and could be avoided with common sense and if builders always adhered to contract law.
From a client’s perspective, the builder needs to deliver on time, on budget, have no defects and present a finished job that is in accordance with the plans. It’s when this doesn’t happen, or when things have not clearly been stated in writing, that disputes can happen.
A building contract should clearly outline what has been agreed upon. When this fails and becomes a building dispute, there are a few methods to take that could help resolve the matter. Hopefully a resolution can be found without the matter ending up in court, although sometimes there is no other option.
The first and least formal way to resolve a dispute is to negotiate. This means meeting with the other party and trying to come to a mutual agreement that satisfies everyone’s needs.
Always seek acknowledgement
Communication is the key to resolving disputes and ‘assuming’ that the other party understands or agrees with what is being communicated is heading for trouble. Always, when discussing the dispute, seek acknowledgment of key points to avoid miscommunication.
Talk, don’t argue
It doesn’t take much for an argument to start when there is a building dispute. The key is to stay calm, and talk things out in a calm manner. When the discussion turns up and tempers flare, it becomes harder to resolve the problem and things can be said in the heat of the moment that lead to regrets later on.
Put everything you’ve agreed to in written form
This is essential because if the dispute ends up in court, the proof is in the written forms of acknowledgments. Always clearly document your joint conversations and facts, complete with all times and dates, in chronological order.
Ensure the facts are beyond reasonable doubt
Make sure you have the correct information and your case is iron-clad before casting blame. Refer back to contracts and notes to determine whether you are in the right and use these documents to bolster your position in any negotiation.
Mediation is the best way forward should conciliation fail
If the conciliation fails, the best approach is to hire a mediator to try and resolve the problem. A skilled mediator facilitates a solution, which suits the needs of both parties. The mediator does not judge who is right and who is wrong. Because the disputing parties arrive at a solution rather than having a court make the ruling, the disputants maintain control of the entire process. Heading to arbitration is expensive and stressful, so resolving the matter out of court is a much better option.
Resolve each issue rather than dissolving the relationship
Despite any disagreements, preserving relationships should be paramount because often the parties might have to continue in business after the dispute is resolved. This is why mediation is often a good option as the parties strive to keep the relationship intact.
Should the above steps not resolve the matter, the next step is arbitration, in which an impartial third party makes the decision. The decision can be enforced legally and is not easy to appeal.
When all else fails, then the final step is litigation, a very costly exercise. Litigation is a formal process for resolving disputes in court or tribunals, based on the rights of the parties involved. As an expert witness in building disputes, I have seen costs anywhere from $10,000 up to and over $75,000, so it’s in everyone’s best interests to avoid taking things this far wherever possible.