Hawaii's World
By A.A. Smyser
Tuesday, April 16, 1996
The Hawaii Convention Center, now being built, is partnered. So is a big sewer construction project on Sand Island involving 110 tenants. So are two Veterans Administration structures being built on the Tripler Hospital grounds. The Army Corps of Engineers has used it since the mid-1980s. President Clinton gave it a boost by ordering federal agencies to settle disputes out of court whenever possible.
The key to partnering a construction contract is to get all parties at a two-day retreat before work begins. On hand should be the owner, architect, engineers, contractor and the major subtrades. A trained neutral facilitator knowledgeable about the industry works to get them on a first name basis. The facilitator then helps them discover for themselves the benefits of cooperative action.
The skill of the facilitator is an obvious key. He or she must not be associated with any of the parties, should help get everyone into the discussion and, by being neutral, help avoid the resentments of direct confrontation.
Key words and phrases from the discussion are recorded and help the participants develop a "group memory." Typically all parties commit to creating and sustaining a quality project. In a "partnering charter" they typically may commit to maintaining mutual respect, maintaining communication, seeking an accident-free work environment, minimizing inconvenience to neighbors, and completion under budget and ahead of schedule.
They typically agree to meet monthly, respond to each other's requests for information within one working day and strive for prompt resolution of all difficulties. They adopt dispute resolution rules such as solving all disagreements at the lowest possible level within a fixed period of time, or escalating them if necessary to the next supervisory level, again with time deadlines. The goal is to have no claims at the end of the project.
Attorney Gerald S. Clay, who has also worked with the non-profit American Arbitration Association, is high on partnering and has helped put it into effect. In 1987 he co-authored the book "Before You Sue - How to Get Justice Without Going to Court."
Working closely with him is Keith Hunter, president of the firm DPR - for Dispute Prevention and Resolution. In a paper presented to Asian contractors meeting in Kuala Lumpur in 1994 Clay said "partnering may represent the ultimate in dispute resolution because the key element is prevention." The more familiar practices of mediation (seeking conciliation) or arbitration (submitting to a third party) kick in only after disputes arrive.
MEDIATION and arbitration to avoid long trials have had the full blessing of the Hawaii State Supreme Court, which for 10 years has funded the Center for Alternative Dispute Resolution. It helped settle 1,100 cases last year. Some of these are auto personal injury cases that mandatorily go through a procedure called court-annexed arbitration if they involve less than $150,000. Under ADR dissatisfied parties can demand a full court trial but face financial penalties if they fail to improve their arbitration award by at least 30 percent.
Both Chief Justice Ronald Moon and the CADR administrator, Michael F. Broderick, stress that the 1,100 cases resolved are only the tip of the iceberg. Neighborhood justice centers and many business and commercial contracts use mediation and arbitration to save thousands of disputes from ever going to court. Praise be. Court trials are adversarial and drive the parties apart. Partnering and mediation take the opposite tack and try to bring the disputants together. More use of them will make this a happier world.