Give us an insight into what’s been keeping you busy lately.
Recently I have taken the position of Associate Director at HKA.
HKA is the new name for the Construction Claims Group of Hill International (and associated subsidiaries Binnington Copeland & Associates, Cadogans, Knowles, McLachlan Lister and Hill-PCI Group) following its sale and de-merger from Hill International, Inc.
Currently I lead a team of 15 claim consultants, engaged in all forms of claims assessment, management, dispute avoidance and, resolution at Eskom’s (South Africa’s electricity public utility) Kusile Power Station.
Kusile Power Station in South Africa is a coal-fired power plant under construction by state electricity utility Eskom, about 15 kilometres north of the existing Kendal Power Station near Witbank, Mpumalanga.
Outside of work I have started the local branch of the CIArb South African YMG along with starting work on a new legal text book for the local construction industry.
The recent YMG event connected with CIArb’s Johannesburg conference proved very successful and you are in the process of setting up a YMG in Johannesburg. Can you tell us a little bit more about that?
South Africa was fortunate to be one of this year’s venues (the others being Dubai and Paris) to host CIArb’s International Arbitration Conference.
Traditionally the Young Members Group holds its own event the day before the opening of the main conference.
The local branch has long held the intention of setting up a YMG and the international conference was seen as an ideal launching platform.
With a general theme of ‘Young Perspectives on Civil Law and Common Law in International Arbitration’, the topics addressed included many of the challenges faced by young arbitrators.
The event was opened by Professor Dr Nayla Comair-Obeid, CIArb President followed by a methodical examination of the latest developments in international arbitration law by Prof. Mohamed Abdel Wahab.
A humorous yet insightful breakdown on the topic of ‘The Art of Advocacy: The Civil and Common Law Styles’ was delivered by Abdul Jinadu, Barrister at Keating Chambers, and Ziad Obeid of Obeid law firm, providing the more than 170 attendees much to reflect on.
The panel discussion, focusing on the challenges and opportunities facing young arbitrators, sparked plenty of debate, with attendees being quick to raise issues such as the high cost of training as a barrier to entry along the lack of appointments received by young arbitrators.
The evening concluded with a cocktail party sponsored by Nedbank, which provided an opportunity to network and further engage with the speakers.
Following on from the success of the conference the YMG is in the process of finalising a local board. The board will be tasked with arranging future events, all with the primary intention of promoting the use of arbitration by exposing young professionals and students to the practice of international commercial arbitration.
What would you most like to see clients do when it comes to negotiating their way out of a dispute?
All too often it is not the lack of intention or willingness to negotiate but the failure to follow a structured approach which leaves one of the parties, if not both, walking away dissatisfied.
My experience has shown that the typical negotiation narrative follows a remarkably predictable outline.
The parties meet on the day of the negotiation, with little or no prior preparation having taken place, whereby they begin to engage in polite and casual conversation in a somewhat haphazard attempt to build/re-establish rapport. It is at this juncture that the fate of the negotiation is all but sealed.
Once this informal yet obligatory “chit-chat” has run its course one of the parties will jump straight into discussing the most contentious aspects of the disputes in an attempt to ‘get straight to the point’.
What then follows is an exchange of various positions finally culminating in either the “lets meet in the middle” concession or a total breakdown of the negotiations.
Rather, what I would propose is the following 5-step process:
Step 1: Preparation – at this stage parties identify the issues along with their interests underpinning the dispute.
Step 2: Opening – here the parties meet to develop a common agenda and spend time identifying common goals.
Step 3: Exploration – here the parties interrogate each other’s interests (as they inform the initial positions which have been taken to generate mutually agreeable solutions).
Step 4: Bargaining – making of concessions and moving towards solutions;
Step 5: Concluding – reaching a binding and mutually satisfactory agreement.
Outline your three professional learning points for this year.
This past year I have been involved in the assessment and resolution of numerous large construction claims.
What has stood out as a common thread is the inability of most contractors to articulate their entitlement, to additional time and money, in a clear and persuasive manner.
Coming from a legal background this initially came as quite a surprise.
Often the sums of money which are at stake are considerable against which one would expect the party seeking reimbursement to spend considerable time and effort in setting out the precise grounds of any entitlement.
My first take-away would be that, key to the avoidance of any dispute, is the ability to, preceding any formal legal process, coherently and in a manner which is consistent and persuasive yet at the same time non-adversarial, articulate your position to the other side.
All too often it is only once the parties are well within the realms of a formal dispute that they are truly informed as to the others position.
My second take-away would be that of “Appropriate Dispute Resolution” as opposed to alternative dispute resolution. All too often in the construction industry the manner of dispute resolution is agreed at tender stage and then adhered to mechanically by the parties once a dispute inevitably arises. Rather I would advocate that the nature of the dispute is reviewed and the parties then agree on the most appropriate mechanism of resolution.
My third and final take-away would be to engage in something outside your normal day-to-day activities – setting up the local YMG has brought its own challenges and rewards – however the experience has been one which I have thoroughly enjoyed.
Finally tell us about your route to CIArb fellowship and how you have benefitted from membership?
I came to the CIArb achieving fellowship through my LLM studies coupled with the successful completion of an additional award writing course.
The benefits have been numerous. Through joining the CIArb and more particularly the local branch I have met numerous like-minded individuals (advocates, lawyers, members of the built environment) who all share a passion for alternative dispute resolution.
Furthermore, the CIArb has given me a platform to progress professionally. Many of my fellow professionals within HKA are members and Fellows of the CIArb. This has provided me with the opportunity to engage with colleagues from around the world, who were it not for our shared interest with the CIArb, I would never have met.
My association and involvement with the YMG has provided further opportunity to meet and engage with professionals from around the globe – quite simply my involvement with the CIArb has been career changing.