حل اختلاف و شکایت های قانونی در صنعت ساخت و ساز. مدارک و شواهد بر تعارض و حل تعارض در هلند و آلمان

The construction industry is regarded to be a tough and competitive business characterized by short-term and opportunistic relations rather than being based on cooperative partnerships. In particular, conflicts and litigation have been claimed to proliferate in the construction industry. Upon closer inspection of the literature, it seems that the empirical basis of these claims is largely circumstantial. Using data on contractor–subcontractor relations in the construction industry in The Netherlands, we consider the extent to which litigation in construction is common. Then we compare the results to similar data sets on IT-purchasing both in The Netherlands and Germany, and to a data set with more general business-to-business transactions of larger Dutch and German firms. We find some evidence that the construction industry has higher percentages of transactions leading to either arbitration, suspension of the relation, or legal steps (1.6% versus 1.2, 0.4 and 0.6). The differences are however not as extreme as one might conclude based on superficial reading of the popular and scientific literature, and certainly not bigger than the differences between the other data sets.

The construction industry has often been characterized as a harsh business. Even a brief literature review suggests that behaviour in the construction industry is characterized to be antagonistic and confrontational (Cox and Thompson, 1997 and Saad et al., 2002) and relying on detailed contract specification and close performance monitoring (Kadefors, 2004). An important and typical consequence of the tough and competitive world that the construction industry apparently is, is that there seems to be a high and increasing level of conflict and disputes (Lavers, 1992 and Brooker and Lavers, 1997). In addition, researchers have reported a dominant blame-culture and a strong tendency towards the use of litigation to resolve disputes.1 A closer look at the scientific literature reveals that there is surprisingly little representative empirical evidence to back up the harshness of the construction industry. Many publications on disputes and conflict resolution in the construction industry are largely conceptual, or make claims about the state of affairs without reference to empirical data based on specific experiences, impressions, perceptions and opinions of practitioners (cf. Bryde, 2008, and several contributions to the proceedings of the First International Construction Management Conference at UMIST/UK in 1992). In still other publications “empirical generalizations” are formulated based on case study research with only a limited number of interesting but not necessarily representative cases. Even when researchers themselves have been cautious about and warned against generalizations in the original study (e.g. Khalfan et al., 2007), subsequent researchers who present literature overviews on the subject sometimes loose the cautiousness of the original. Let us illustrate the issue with an example. The conclusions in the influential Latham Report (1994) with respect to the widespread use of litigation in the UK construction industry have been quoted numerous times, and the report is generally used as a reference that is showing that the construction industry is a tough and troublesome business (e.g. Bresnen and Marshall, 2000 and Saad et al., 2002). However, these conclusions are largely based on analyses following several poorly performing projects, so that representativeness is problematic. The same holds for the work of the ‘Dispute Avoidance and Resolution Task Force’ of the American Arbitration Association (as mentioned in Stipanowich, 1997 and Colledge, 2005). Reports such as these and the general scientific literature have contributed to an image of the construction industry characterized by inefficiency and toughness, but it is not clear whether this image is correct. This image might be completely correct, but nobody bothered to really count in a representative way. We do. The aim of our article is to add to the empirical evidence with respect to conflict resolution and litigation in the construction industry. Is it really as harsh as people tend to think? In our analysis we focus on conflict resolution and litigation as our main indicators of harshness (as is customary in the literature). First we outline the literature on conflict resolution and litigation and introduce the concept of a dispute pyramid as introduced by Sarat (1984) as a useful tool to analyze dispute resolution. We then introduce the Dutch construction industry, which is also generally seen as the tough and competitive world that construction seems to be in general. Our data collection allows us to then present estimates on conflict and dispute resolution. In the subsequent section, we compare these data to similar data in the IT-sector in the Netherlands, so that we get a feel for the magnitude of a within-country sector difference. Then, we compare these IT-data with an identical data collection of IT-transactions in Germany, so that we can estimate the difference between countries, within a sector. Fourth, we compare these data to a more general set of purchasing transactions of Dutch firms. A conclusion and discussion section concludes the paper.

Conflicts and litigation have been claimed to proliferate in the construction industry. A closer inspection of the literature reveals that the empirical basis of this proliferation claim is at best circumstantial. Empirical generalizations are frequently formulated based on measurements of a limited number of interesting rather than representative cases. In addition, larger scale empirical data collections usually measure practitioners’ perceptions about the industry. However useful these might be, these perceptions might not coincide with the actual state of affairs in the field (cf. Bryde, 2008). If one considers the literature on conflict resolution and litigation in a somewhat broader business context, it becomes clear that during the last five decades many researchers have been impressed by what has been called the “litigation explosion” in both the US and the UK. The main problem with the perceived litigation explosion is that it should be considered relative to the growing number of transactions. If one does so, it appears that it is usually quite exceptional for disputes between companies to end up in court, even after controlling for the increased competition in business, increased internationalization, and the increased litigiousness in the world of business (cf. Deakin and Michie, 1997). We used the metaphor of a dispute pyramid for the various steps of conflict resolution ( Sarat and Grossman, 1975, Miller and Sarat, 1980–1981 and Sarat, 1984). Such a pyramid represents the stages through which events pass in the dispute process. To add to the (representative) empirical evidence on conflict resolution, we first analyzed the construction industry on the basis of a data set consisting of 448 contractor–subcontractor transactions in The Netherlands, as introduced in Kamann et al. (2006) and Welling (2006). A substantive part of that survey was devoted to measuring the kind and severity of the problems that were encountered during the transaction and to measuring conflict resolution. Secondly, we confronted the results of our analyses of these construction data with similar analyses of data from three other surveys. One with conflict resolution data from the IT-sector in The Netherlands, a similar data set with conflict resolution data from the German IT-sector, and finally a more general data set of cooperative interactions of Dutch and German firms from various sectors. In total, we analyzed more than 2750 transactions in detail. The results show some interesting and subtle differences in the extent to which transactions lead to conflicts and conflict management across industries and countries. Firstly, all four data sets support the pyramid model: the next phases in conflict resolution are taken step-by-step, without skipping steps in between. This signifies that where problems occur within transactions, conflict resolution in general is characterized by a consistent pattern: most of the time lighter steps are taken before heavier forms of conflict resolution.3 Those who associate ‘harsh business’ with wilder and less predictable conduct in conflict resolution do not find much empirical evidence in our data. Secondly, it is indeed the case that the percentage of transactions that leads to some kind of problem is highest in the construction industry across our data sets: 84% versus 73 and 43 in IT and 67 in the general data set. However, as we progress up the pyramid, the differences become less pronounced or disappear altogether. Thirdly, it is striking that there is a big difference between the two data sets on IT-transactions. The German IT-data show a much lower percentage of problems. Note that the size of these differences is about as large as the difference between the construction industry and the other data sets in general. In other words, it is not obvious that the main finding here lies in the prevalence of conflicts and litigation in the construction industry–country differences, either culturally or institutionally, are likely to play just as big a role. On the other hand, as soon as problems are encountered, the subsequent conflict resolution figures are not that different from the other data sets. This also shows the usefulness of the pyramid metaphor: it allows one to show more precisely where differences in conflict likelihood and resolution occur. Finally, we find that about 1.6% of construction transactions leads to serious conflicts in the sense that they lead to arbitration, suspension and/or legal steps. That is a larger percentage than in the other data sets (there the estimates are 1.2, 0.4, and 0.6). When we compare only with the transactions that lead to some kind of conflict, largely the same image appears: 1.9% versus 1.7, 0.9, and 1.0. Taken together, these results are one of the few rigorous statistics on conflict resolution and litigation, putting litigation and conflict resolution in the appropriate perspective. Above all, our results show that one should remain cautious and prudent about the harshness of the construction industry.