Home' IAQ Yearbook : 2016-17 Contents 64 Infrastructure Association of Queensland Yearbook 2016--2017
include the relevance of an individual's expertise
to the speci c project, their level of seniority,
their known integrity, and their understanding of
contract law and dispute resolution as it applies
to the contractual format in question.
Highly desirable disciplines are those which
complement the over-arching skill set from
each of the contracting parties. Whilst parties
more experienced in the utilisation of DABs may
choose to be exible with regard to the speci c
backgrounds they require to be represented,
newcomers to the concept may be best served by
ensuring that at least one of the panel members
is a practicing contract disputes lawyer.
(It is my own preference that one of the DAB
members be a lawyer, to ensure that if a dispute
does go to court, neither side has had its position
compromised from a legal perspective.)
The key, however, is not to limit the selection
criteria purely to technical skills, but to bring on
board individuals who genuinely understand --
or at least have the capacity and the willingness
to understand -- the nature and unique
characteristics of each party's business model
and business environment.
Early involvement of the Board
While the cultural bent of the parties is to resolve
issues amicably, or at least non-litigiously, the best
assurance of this results from early intervention.
When a project is live, a proactive DAB will meet
at regular intervals, walking the site, attending
meetings, listening to what all parties are saying,
and deriving a gut feel of the dynamics and
. all the while being driven by 'a
stitch in time saves nine' type of thinking.
It is often the case that it takes a while for people to
gain con dence in what, to them, is a relatively new
way of working. Where, for example, a contractor
might not have previously been involved in a DAB,
it can take that party a few months to warm to the
idea and see its value -- even though a client might
have strongly recommended it following their own
Appropriate empowerment of the Board
Typically, the DAB is empowered to make binding
decisions up to a speci ed dollar limit -- thereafter,
any board decision being subject to appeal.
The granting of power, however, must also be
viewed from a less formal perspective.
It is the DAB's role to facilitate discussion of
developing problems and/or dif cult subjects.
This is the nature of the 'avoidance' component
of the board's overall function and, for it to be
enacted with optimum effectiveness, a genuine
spirit of co-operation must prevail, above and
beyond simply the acknowledgement of a
To assist and empower this objective, by way
of example, all proceedings at the formal
DAB meetings are conducted on a 'without
It should also be stressed that all parties must
remain actively cognisant that the board's
members have been selected (i.e. when
appropriately selected) for their depth and
breadth of both industry and contractual
experience, for their lack of bias, and for their
trustworthiness from the perspective of both the
project owner and the contractor.
Thus, there must be the recognition and
acknowledgement that, within the contractual
terms, the DAB is at all times aiming for a best-
Distinguishing dispute avoidance from
The primary distinguishing factor between
dispute avoidance and mediation is that dispute
avoidance relies on a close and continually
evolving understanding of the project, while
mediation is an 'after the fact' approach.
Both have their places, but clearly the most
cost-effective management of disputes is to
avoid them to start with, resolving issues and
differences at the earliest possible moment -- and
certainly keeping them on-site to the greatest
A Dispute Avoidance Board might not be a cast-
iron guarantee of a hassle-free project, but -- in
my experience -- the decision to have a DAB
monitor and guide a project's contractual issues
is a decision that represents tremendous upside
and very little downside.
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