encouragement to move on with optimisms. Opening Session : Employer (Respondent)

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Rachel Collins
5 years ago
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1 359 can summarise it as the establishment of common facts, grounds, understandings, and so on, emitting the scent of constructiveness, progress and agreeability of the parties as encouragement to move on with optimisms. (C) Opening Session : Employer (Respondent) The followings are random development of the case during opening stage:- SFM Mediator : Mr. Employer, may I ask if you could give me a summary picture of your case and claims in, say, five minutes? My case is simple. All the claims of the Contractor is not accepted. My project has already been delayed for 20 weeks. All along, I did nothing to cause such a delay. I have not asked for changes in design or anything at all. The contract is a lump sum contract which means the Contractor has been allocated under the contract with all the risks he is to undertake including the unforeseeable ground conditions and complete the specified works on time. Even though the ground conditions are not as shown on the site investigation report attached to the tender / contract, such report has been marked as for reference only which means I do have any responsibilities to its accuracy at all! It is always the Contractor s duties to ascertain what is unforeseeable item as required by the tender, and have them included as part of their tender offer before they submitted so. I definitely won t accept any of his claims on EOT nor would I agree on his

2 360 stipulation of extended preliminaries. There is no contract provision on how this is to be calculated even though when he obtains any EOT grant from the Architect. Regarding the contract variation owing to the rock cutting, which I agree as a matter of fact, I cannot accept it as a VO for the same reason that the Contractor is fully liable for anything happening underground. At the moment, the Architect has not given any of his advice on the Contractor s claims, which came in so fast that no one can have time to react to it. Since I am not the one in default, it would either be the fault of the Contractor or the Architect. I lose 20 weeks now, and the Contractor is not proceeding with the works! Works must be resumed within days so that no more delay will be caused, and I must be compensated for the damage already done because of the 20 weeks delay by the Contractor AND / OR the Architect. SFM Mediator : May I ask the contract provision for LD, ie, how much per day? $8,000 per day. SFM Mediator : Thank you. So, the total amount of LD as you wish to claim the Contractor will be $8,000 x 20 weeks x 7 days = $1,120,000. May I also ask on the original contract sum? $10,000,000.

3 361 SFM Mediator : Thanks once again. By putting the two together, you are looking at a claim of about 11.2% of the original contract sum which is arising from what you consider as the Contractor s delay of the project as of now. Am I right? Yes. SFM Mediator : Thank you for your sharing. May I then summarise you case. You have a view that based on the way the contract was drafted as a lump sum contract with the site investigation report being indicated as for reference only, you maintain that all Contractor s claim for EOT, associated EP, and VO must be included as part of the Contractor s contractual obligations. In the case, you consider that you are not in default. Hence, you consider that all the contractor s claims are not established, and you are rightfully entitled for compensation in terms of LD in a total sum of $1.12 million. And you wish the project to be resumed to normal progress and completed as soon as possible, presumably, by the effort of the Contractor in front of you, as well as the Architect to assist along. Am I correct? Emplyer : Yes, you are perfectly correct. SFM Mediator : Also, I have the feeling that, from your wish to claim for LD and your quote on the LD rate, you are keen to follow the provisions of the contract for the rightful protection of your original benefits in the contract and in settling today s dispute. Do I have a correct view of your intention?

4 362 Yes, you do. SFM Mediator : Sure, we may need the confirmation of the Architect, the contract administrator, on the exact provisions of the contract as may be necessary. Would you mind if I follow that up with the Architect shortly? Nope. SFM Mediator : By the way, have you received any input from the Architect on the current Contractor s claims on EOT, EP, and VO? Not at all. Actually, I have personally called up Mr. Architect in the last two days trying to obtain his views before today. He seems to be refraining to let me know of his views. He kept saying that he was waiting for the Contractor s further submissions before he can come to any preliminary conclusion. He also said that he is coordinating with the QS in terms o the interpretation of the contract terms, and approximate value of the so-to-speak extra works if they are eventually legitimate ones, which I wouldn t believe so. To me, it is either the fault of the Contractor or the Architect who devise the contract terms for me. SFM Mediator : Thanks. Do you have anything more to add for your case opening? No more, thanks.

5 At this point, everyone in the mediation room, ie, the Contractor and the Architect, is put onto the same perspective of the Employer not only on his claims, but also on a proportionate picture of his claim amount over the total contract sum, his emphasis on the contract provisions as well as his views on his Architect s performance on the subject matter. By the way the questions are designed and asked in front of the other parties, the SFM mediator has extracted also the intentions, sentiments, feelings, and concerns behind the claims of the Employer to become more available for everyone including the Employer himself, who may not have yet verbalised in summarised form of his wish and want so clearly even to himself, for the considerations of the other present parties toward the development of interest-based settlement options At the same time, the construction SFM mediator must not try to clarify whether the Employer s claim is contextually correct or not, like in the definition of lump sum contract, the scope of works under the contract, the provided claimability of LD, and so on, because he is not there to judge on correctness of claims even though he may have excellent knowledge and experience than the Employer on the relevant aspects. In another word, the construction SFM mediators are not needed to know all the final details of these concepts. He must not even think or try to foster his own knowledge and experience or even his own perception of the case over any parties. However, his expedience in knowledge and experience are important for him in devising his next move The best recommended mindset for the SFM mediator is always to stay open and receptive so that all that are expressed by the parties are well heard and be able to fall into his factual matrix of the case.

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