Brant                

Associates


“With your experience, diligence, professionalism and personal determination we achieved a successful settlement.“


Mike Carroll

Mouchel Infrastructure Services

A Leading Construction Dispute Resolution Consultancy

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01733 568687. Alternatively e-mail your query to qs@brantassociates.com

Brant Associates Ltd | Head Office: Unit 8a Opus, Cygnet Park, Hampton, Peterborough, PE7 8HP |


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Wax on, Wax off


Many of you will have seen the classic 1984 Film ‘The Karate Kid’, from which the title of this article is blatantly pinched. You may even have seen the recent re-make with Jackie Chan. For me the original film started an adventure into the world of Martial Arts, long before my journey into the world of Construction disputes commenced.


Having now been heavily involved in both of these worlds for a significant period of time, it is clear to me that companies within the world of Construction can learn a lot from Martial Arts. I am not making reference here to using your feet or hands to break breeze blocks, roofing tiles and the like. I have done this and believe me you are far better off sticking to using the correct tools! What I refer to is learning how to be best prepared to protect yourself.


Within my time in martial arts I have experienced many different forms, from the standard ones everyone has heard of such as Karate, Taekwondo and Judo, to the more obscure forms such as the pressure point defence I practice today. One thing that is clear from all of these, is that you need to have the ability in equal measures, to be able to defend and attack.


Defence


A block, whether it be Daniel San’s wax on, wax off from the aforementioned ‘The Karate Kid’, or a boxer’s parry is all well and good if you are expecting to be attacked. But if you are caught unawares you need to either-



There is little difference here with the Construction Industry. If you were aware from the pre-tender stage of a Construction Contract that the party you were to enter into Contract with was going to attack you by commencing dispute proceedings at some point throughout the currency of the Contract or indeed post-contract, you would either do everything in your power to ensure that you were as well protected as possible, or, if feasible, you would just walk away.


If however you are not expecting an attack you will need one or more of the aforementioned three points.


In the Construction world these can be considered as follows-





If the attack does come with little warning it is advisable for you to have been in training, so that you know how to handle the situation. In terms of the construction industry such training could comprise:-









Attack

In certain circumstances it may be necessary for you to be the party commencing dispute proceedings. For example the Contractor / Employer may be unlawfully withholding monies from your applications, or refusing to agree the Final Account.


In order to commence proceedings it is essential that you are suitably prepared for the fight. Such preparations should include the following:-








Avoidance


Although being capable of defending yourself and attacking effectively is essential, the primary course of action should always be avoidance. Taking measures to avoid a combative situation is always preferable, though admittedly not always possible. Brant Associates have recently been spending a far greater proportion of our time advising our clients on dispute avoidance. Research tells us this is because our clients are aware that the costs involved in being properly prepared for a Contract are far lower than the costs of resolving issues arising during or after a live contract.


Much of the advice we provide is based around the results of a Mini Commercial Risk Audit which we will carry out free of charge for our clients, this identifies the predominant potential weaknesses in our clients’ procedures and from this we can advise on the best course of action, whether this be in terms of the introduction of new procedures or simply amending existing documentation.


By being aware of the most common potential pitfalls and covering your back at all times you will present less opportunity to your opponent to pick a fight with you. This applies to both construction disputes and martial arts. A bully is less likely to pick on you if they think you are capable of defending yourself.


Mark Brant


September 2010