20 Jun 2019
On Monday 17 June 2019, the UK All-Party Parliamentary Group for ADR met to discuss the issue of conflict avoidance, specifically asking ‘How can government make more use of Conflict Avoidance Boards (CABs)?’.
Lewis Johnston (CIArb Head of Policy, Public Affairs and Research) opened proceedings by congratulating John Howell MP on becoming one of CIArb’s latest Associate Members, and thanked him for his longstanding advocacy for ADR.
John Howell MP was joined by Vice Chair Christina Rees MP and Lord Taylor of Warwick in putting questions to the witnesses, with the support of audience members.
Witness Ed Spencer (Director and Head of Client Service, Arcadis) opened the session by outlining how CABs work and giving a history of dispute avoidance mechanisms, as well as data around usage. Witness Christopher Miers (Managing Director, Probyn Miers) followed, highlighting the proactive nature of CABs and discussing cases where he had been involved, including Crossrail and the Rio 2016 Olympics. Christopher also gave the APPG first sight of some as yet unpublished data revealing the extremely high rates of party satisfaction when dispute boards with a conflict avoidance role are utilised.
John Howell MP was keen to interrogate how the cost of CABs compared to both litigation and other forms of ADR. The panel were unanimous in their view that in long-term or complex projects CABs could provide significant cost advantages over adjudication or arbitration, while improving project outcomes.
Lord Taylor was keen to understand the variety of circumstances in which CABs may be utilised, and how the model could be incorporated into other contentious areas. Panellists and the audience highlighted the potential of CABs beyond construction, in areas from IT to manufacturing and procurement. Witness Les Mosco (former Commercial Director, Ministry of Defence) discussed the types of government projects where CABs would be particularly relevant, highlighting their usefulness when dealing with emerging technologies and the delivery of complex products/projects.
John Howell MP enquired about the necessary skillset and background of CAB panellists, such as the usefulness of legal knowledge, technical expertise and mediation experience. The panellists agreed that part of the usefulness of CABs lay in their flexibility, allowing parties to tailor their composition to the issues at hand. Witness Wolf von Kumberg (former Legal Director, Northrop Grumman Corporation) suggested there is significant numbers of qualified personnel from a variety of different fields, so government would not face a capacity issue if CABs were used more widely.
The audience also actively contributed to the discussion. Mike Shannon (Senior Commercial Conflict Manager at TFL) was keen to discuss the organisation’s experience of incorporating CABs into contracts, which has been so successful they will be doing this as standard for all major projects.
John Fletcher (Head of the RICS Dispute Resolution Service) highlighted the work of the Conflict Avoidance Coalition (of which CIArb is a leading member) to increase awareness of CABs and other mechanisms. The panellists were in agreement that lack of awareness was the key issue holding back wider utilisation of CABs. Christina Rees MP was particularly interested in whether devolved government could do more to engage on this front.
Susan Lindsey (Crown Office Chambers) was interested in understanding what tools are currently available for parties interested in utilising CABs. Witnesses highlighted the usefulness of rules and guidelines available through bodies such as CIArb, as well as the panels of suitable practitioners they make available for parties. In particular, Lewis Johnston raised the soon-to-be-released updated CIArb dispute board rules.
Mohammed Haque (Chairman of CIArb’s Thames Valley Branch) raised the issue of the cultural view of disputes, highlighting how legal education doesn’t sufficiently focus on the earlier stages of conflict avoidance. The witnesses agreed this was an area where attitudes were changing and parties were starting to recognise the increased efficiency of tackling issues early on.
The Chair John Howell MP brought the meeting to a close after an engaged debate, expressing his interest in pursuing this issue further. He commended the excellent quality of the session and concluded this was an area where the APPG could play a leading role, advocating on behalf of emerging best practice.
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