The Conflict Avoidance Coalition

Doubtless many of you will have become aware of the Conflict Avoidance Coalition (CAC) over the last 6 months or so, not least because they have been much in evidence on LinkedIn and other social media. In this article we briefly explain what they are up to and we make a few observations about their initiative.

The CAC’s website is https://conflictavoidance.org/. On the home page CAC explains that it is a coalition of 90+ leading organisations working to prevent conflict and reduce disputes in construction and engineering……… These 90+ members are made up of major infrastructure owners like Transport for London, Network Rail….. to major contractors such as Skanska and Balfour Beatty, to professional institutions including RICS, ICE, CIArb, ICES, RIBA….

The website says that these organisations are shaping a future where conflicts are managed constructively – and often prevented entirely. They are doing that by working collaboratively to embed conflict avoidance mechanisms via sharing knowledge, promoting best practices, and supporting early resolution methods.

At the heart of the CAC, is the Pledge. Organisations are urged to sign the Pledge. If you do so, according to CAC, you are signaling that:

you are a good business to work with;
maintaining good business relationships and dealing with problems early and amicably, are keystones of your day-to-day commercial operations; and
your business is fully committed to delivering value for money and working collaboratively to ensure projects are delivered on time, on budget and on par.

But the website adds: signing the Pledge is just the beginning. Putting that commitment into practice is where real change begins. One way to do that is to acquire bronze, silver or gold level status in CAC’s formal Recognition Scheme. Pledge signatories are automatically registered as Bronze members. You can reach silver or gold level via an application form, where you provide evidence of your conflict avoidance behaviour. Whatever level you achieve, you appear in the Directory on the website and thereby you are in the shop window.

There are some of the usual industry figures on the CAC steering group and in the working groups. Also amongst the registered CAP panelists (see below as regard CAP).

The CAC seems to have been influenced by, and its website originally housed by, the RICS. The first of the CAC tools accessible via their main menu is in fact the RICS’s Conflict Avoidance Process (CAP).

The RICS’s CAP is an early dispute resolution procedure that encourages parties to try to nip them in the bud before they escalate to drawn-out, damaging disputes. CAP can be written into contracts or adopted on an ad hoc basis.

CAP Panels operate under the oversight and within the regulatory framework of one of the world’s leading Royal Charter Institutions, RICS, as the website describes the RICS. So as with the various Adjudicator nominating bodies in this country (like the RICS), CAP self-regulates.

CAP boils down to this:

the appointment of a 1 or 3 person CAP panel of experts experienced in the specific issue that is causing the disagreement between parties
the panel investigates – it hears from the parties, gathers information by speaking with others involved, conducting its own inquiries and visits the site if required
the panel then produces a report described as a fully reasoned, informed assessment of how [the parties] may fare if the matter goes to arbitration or litigation

More information about CAP is available at https://conflictavoidance.org/ca-tools/conflict-avoidance-process.

In essence both CAC and CAP are variations on a theme. They are adding to the existing tool-box of mindsets and procedures that go with adjudication, early neutral evaluation, arbitration, litigation, dispute boards, mediation, expert determination and so on. They borrow bits from many of those and create something newish….. but not really.

The primary source of CAC/CAP seems to be the RICS and their promotion of CAC/CAP possibly reflects what we perceive as their corresponding demotion of interest in things like adjudication.

But CAC is more than the above. Via the working groups, you will see that CAC’s activities spread far wider. See for example the working group called the Contract Group. This group states that it promotes the benefits of contract standardisation in construction…….amendments to standard form building contracts should be relevant to the project, the client or the commercial deal and should be explained. In other words amendments to standard form JCT/NEC contract etc should be strictly limited and justified. Ridgemont is a member of this group. We have a keen interest in this issue of whether standard form JCTs and NECs as drafted contain a fair risk allocation and the circumstances in which that allocation should be adjusted.

We encourage you to take a look at CAC and CAP. Get under the skin of what it’s all about and form your own opinion of its merits.

As always with these things though, just banging a drum and shouting: be collaborative! be fair! act early! save costs!…….does not mean that when you lift the bonnet and look closely at what is going on, any of those things are being achieved or are ever likely to be.

Ultimately behind any disagreement and any new initiative or procedure to deal with them more effectively, are people: ie parties, advisors and those who facilitate a formal outcome. But people are often not great actors in this drama. They often lack the necessary technical skills, life experience, moral compass, freedom from vested interest and so on. Even when they aren’t embarrassed on any of those scales, they are often weighed down by a badly negotiated contract and/or a badly administered one and so the good they can do is limited.

As for only making fair / appropriate amendments to standard forms, how does one demonstrate that the unamended form is fine as it is or that an amendment is fair/appropriate? Those terms bedevil many of the thoroughfares across our common law system already and are the fulcrum of many disputes.

We hope you enjoy researching CAC/CAP. As always please engage with us about our content if you have any questions or comments.