1. Assessment Of Defects In Concrete Structures And
Evaluation Of Safety Of Concrete Infrastructure
Training
5th Day
Claims Management & Dispute Resolution Methods,
Structural Forensic Engineering and Case Studies
By:
MAHMOUD ABUFOUDA
MSc Civil Engineering

2. Content
 Conflict Management & Dispute Resolution
 Conceptual Differences
 Conflict in Construction
 Construction Dispute causation
 DRM
 ADRM
 Forensic Engineering
 Definition
 Fundamental questions of fact
 Why forensic engineering
 Influence of improved practices
 Stages for Forensic Engineering

3. Conceptual Differences
 Claim
 “A formal demand for compensation, filed by a contractor or the owner with the
other party, in accordance with provisions of the contract documents”. (CMAA)
 Conflict
 “Divergence of interest, objectives or priorities between individuals, groups or
organizations, or non-conformance to requirements of a task, activity or process.”
(Gardiner and Simons, 1992)
 Dispute
 “A Disagreement in which opposing views are strongly held.” (Oxford Dictionary)
 “A dispute can be said to exist when a claim or assertion made by one party is
rejected by the other party and that rejection is not accepted.” (Institute of Civil
Engineering (ICE) Arbitration)

4. Conceptual Differences
 “Conflict” is a general term; it exists where there is an incompatibility of
interest.
 Conflict Can be;
 Functional, natural and constructive: disagreement or arguments related to tasks,
roles, functions or processes. Lead to “Constructive Discussion”.
 Dysfunctional, unnatural and destructive: escalation of arguments to a dispute.
 “Conflict” can be managed to prevent escalating it to “Dispute”.
 Disputes require resolution.
 Dispute is associated with distinct justiciable issues.
 “Dispute” are paired with “Resolution” and “Conflict” is paired with
“Management”

5. Conflicts in Construction
 Conflicts seems to be very synonym with construction projects.
 The competitive nature of the construction industry and the complexity of
their agreements and contracts
 It starts with claims, like; request for payments, request for EOT, Liquidated
Damages, etc.
 Proceeded with rejection.
 Assertion on the rights.
 Conflicts are escalated to adversarial relationships, causing dispute.
 Disputes become endemic between the involved parties, threatening their
relationships.

6. Construction Dispute Causation
Contractual
Related Issues
• Standard Contracts
• Fuzzy statements
• Force Majeure
• Financial Issues
• Dispute and Claim Clauses
Payment
Related Issues
• Payments delay
• Failure in payments
• Payments for Unapproved work
• Costs for change orders.
Time related
Issue
• EOT (Extension of time
• Liquidated damages

7. Construction Dispute Causation
Quality
Related Issues
•Defective construction
•Incomplete work
•Rework
Legal Related
Issues
•Lack of knowledge of the local legal systems
•Changes of laws
•Conflicts of laws
•Non-compliance with the law of Public Works and Housing
Culture
related Issue
•Language problems
•Cultural differences
•Management styles
•Communication issues
Others
Related Issues
•Late instruction by the owner
•Availability of information
•Accessibility to construction site and utilities
•Design related Issues (incomplete designs, changes of the site conditions, insufficient designs and constructability issues)

8. Discussion
What would happen if the contractor raised a
claim to the owner demanding remedies ??

9. Discussion
If you were the consultant engineer?
What would you do?

10. Discussion
If the owner rejected the claim and the
contractor was holding his right?
What would the contractor do?

11. Discussion
Return to the Contract.
Specifically “Claims & dispute Resolution”
Clauses

12. Dispute Resolution Methods
“Dispute resolution techniques are the
procedures to settle the disputes between
the parties in a fair, feasible and acceptable
way in the shortest possible time”

13. Dispute Resolution Methods
 In the construction contracts, the dispute resolution clause determines the
guidelines of following the process managing the claims and the resolution of
the anticipated Disputes.
 In case of Disputes, the Dispute Resolution Clause will determine the method
that will be used.
 Most of construction contracts use the arbitration as DRM.

14. Dispute Resolution in History
 In the past, if there was a dispute, the dispute would be settled at the
informal meetings between the engineer and the contractor. “Shake hands
basis”.
 When the two parties reach the plateau of disagreement, they proceed the
litigation process in order to decide for their issue.
 litigation process is
 timely consuming,
 expensive procedure, and
 lack of the technical background of the adjudicators.
 This raise the dissatisfaction with the litigation process.

15. Dispute Resolution in History
 The need for arbitrators, who had knowledge in the technical issues in the
field, was raised.
 The first arbitration clauses in contracts were manifested in 1915 by the
American Institute of Architects’ (AIA) standard contract forms.
 The American Arbitration Association (AAA) was founded in 1926 to prompt
the use of arbitration.
 Arbitration would probably be the earliest alternative dispute resolution
method.
 Due to congestion load on litigations, the policy of majority of courts transfer
the favor to arbitration to ease the settlement of the construction issues.

16. Dispute Resolution Methods
 The Common DRM are;
1. Litigation
2. Arbitration
3. Alternative Dispute Resolution Methods (ADR);
1. Negotiation
2. Mediation/conciliation
3. Dispute Boards
4. Expert Determination
5. Hybrid methods (Med-Arb)

17. Litigation
 One of the binding Dispute Resolution Methods. (parties can not seek for a
reversal)
 It is a government run system that involve judges and courts.
 After drawing up of the contract, issues, which cannot be resolved by the
parties, can arise.
 It starts one of the parties to file a lawsuit against the other party.

18. Litigation
 Judges are always concerning on the legal side of the issue. (THE CONTRACT)
 Judges don't have any technical backgrounds concerning technical problems.
 The process of prehearing, discovery, testimony and examination of
documents, hearing, handling of witnesses and disclosure phases are
followed.
 Such of approach is complex with restrict rules that vary from state to state
as well as from country to country.

19. Litigation
 Long process (may take years to be solved by courts).
 The disputing parties have no control on the process suffering the long and
expensive process leading to dissatisfaction outcomes.
 The expenses of this process is compensated by all parties.
 The decision of the lawsuit may be not equitable.
 Litigation is the last resort for settling the dispute and after the courts

20. Arbitration
 Arbitration is the most popular dispute resolution method in Construction
Industry.
 Arbitration is a process, subjected by a statutory law where formal disputes
are determined by a private tribunals.
 Arbitration is a technique according to which the disputes of the parties are
solved by the arbitrators who are authoritized as a result of a special
agreement.

21. Arbitration
“An arbitrator is a private extraordinary judge between party and party, chosen
by their mutual consent to determine controversies between them, and
arbitrators are so called because they have an arbitrary power; for if they
observe the submission and keep within due bounds, their sentences are definite
from which there lies no appeal”. Sir Robert Raymond (1700s)

22. Arbitration
 The contractual agreements between the contracting parties should stipulate
the arbitration clauses.
 The Arbitration Clause should contain
 number and characteristics of the panel arbitrators
 government language
 government law (according to the organization the arbitrators belong to)
 Location of the arbitration proceedings
 The arbitrator shall have
 The Professional experiences in construction. (Engineer)
 Legal background. (attorney)

23. Arbitration
 Similar to litigation the decision is binding and enforceable by the Law.
 The arbitration procedure is similar to the courts.
 Unlike litigation, parties can control the process of arbitration by
 Selecting the arbitrator.
 Maintaining the control of the arbitration budget and time.
 Confidential.
 Normally, the final decision of arbitration is given after 6 months of assigning
the arbitrators.
 It can be extended to 12 moths if notice of reversal is issued by one of the
parties.

24. Arbitration
 Unlike the litigation, arbitration is considered as more cost effective than
litigation.
 The allocation of the expenses of the process is to be decided by the
arbitrator.

25. Arbitration Process
Submission
•notice of the
dispute
•statement of
dispute
•Arbitration
selection
•lists of
potential
arbitrators
•Selection from
the panel
•Assigning
arbitrators
Hearing
•Prehearing
•Discovery
•Testimony
•Document
examination
•Hearing
•the parties and
arbitrators
meet in person
•arguments and
evidence in
support of the
case
Decision & Award
•Decision of
Arbitrator.
•Give a period not
less than 60 days
for reversals.
•Give final
decision
•The arbitration
expenses
allocations

26. Alternative DRMs
 “Any method by which conflicts and disputes are resolved privately and other
than through litigation in the public courts” (Kovach, 2004).
 ADR provides binding and non-binding processes range from self-deterministic
of the contracting parties to settle their dispute to the involvement of a third
party to decide for their issues.
 The focus of ADR is to shift outside the adversarial nature of the litigation
process.
 Courts are tending to shift most of the construction disputes to alternative
dispute resolution procedures prior to trials.

27. Alternative DRMs
 There are many of alternative dispute resolution methods including;
 Structured negotiation,
 Mediation,
 Conciliation,
 Arbitration,
 Expert determination,
 Adjudication,
 Dispute review board (DRB),
 Dispute Adjudication Board (DAB),
 Mini-trials and
 Hybrid methods, known as tiered or stepped DRMs, such as mediation-arbitration,
negotiation-arbitration and conciliation- arbitration.

28. Advantages of Alternative DRMs
1. Cost effective.
2. In effective timely manner.
3. Confidential method.
4. Preservation of disputing parties’ relationship.
5. Saving litigation expenses.
6. The availability of qualified, equitable and neutral experts to hear the
complex matters.
7. Methods that are useful to maintain the communications between the
disputing parties by facilitating the understanding of the issue on the each
side of the dispute.

29. Comparison Between DRM
DRMs/Characterist
ics
Litigation Arbitration
Negotiatio
n
Mediation Adjudication DAB
Expert
Determination
Parties involved in
the decision
Judges and
courts
Arbitrators Disputants
Mediators and
Disputants
Adjudicator
Panel of
experts
An expert
Control level of
the parties
N/A Minor Full Full Average Average Minor
Common law
statue basis
Yes Yes No No Yes Yes Yes
Frequency used Common Common Very common Common Common Common Fairly common
Decision
enforceability
Final and binding
Final and
binding
Non-binding Non-binding
Binding if written
in contract
both Final and binding
Privacy Compromising Confidential Confidential Confidential Confidential Confidential Confidential
Relative duration Very long Long dependent Short Relatively short Short Short
Relative cost Very expensive expensive
Least
expensive
Less
expensive
Average Average Less expensive
Key points
Technical
Knowledge
compromised
Technical
knowledge not
compromised
Amicable
settlement
Solution may
not
follow
contract
Decision can be
appealed
knowledgeab
le of
project
Preferred in
complex technical
issues

30. Rational Process of Dispute Resolution
Avoiding Stage:
• Partnering
• Alliance
• Risk Management
Negotiation Stage:
• Structured negotiation
• Direct negotiation
Facilitated Resolution Stage:
• Mediation
• Conciliation
• Dispute Review Board
• Dispute Resolution Advisor
• Mini-trials
Binding Resolution Stage:
• Arbitration
• Adjudication
• Dispute Adjudication Board
• Dispute Adjudication Board
• Expert Determination
• Litigation

31. Forensic Engineering
“Forensic Engineering is the art and science of
professional practice of those qualified to serve as
engineering experts in matters before courts of law
or in arbitration proceedings”
(Marvin M. Specter “President of the National
Academy of Forensic Engineers (NAFE)”, 1987)

32. Forensic Engineering
 It is the application of engineering principals and methodologies to answer
questions of fact that may have legal consequences.
 These questions of facts are usually associated with;
 Accidents,
 Crimes,
 Catastrophic events,
 Degradation of property and
 Various types of failures.

33. Forensic Engineering
 Forensic engineering may include;
 Investigation of the physical or technical causes of accidents
 Sources of claims and litigation,
 preparation of Forensic engineering reports,
 Providing Evidences and witnesses at hearings and trials in administrative or
judicial proceedings,
 Rendition of advisory opinions to assist the resolution of disputes affecting life or
property.

34. Forensic Engineer
 The forensic engineer is a professional engineer who deals with the
engineering aspects of legal problems.
 Forensic engineer works for attorneys representing plaintiffs or defendants,
who may be;
 individual parties
 corporations,
 governmental agencies.
 Consultants
 A team from different disciplines.

35. Qualifications of Forensic Engineer
Forensic
Engineer
Technical
Competency
Knowledge of
Legal
Procedures
Detective Skills
Oral and
Written
Communication
Skills
Other Skills
(Photographic
skills, imaging
experts or human
performance
specialists)
Personality
Characteristics
(High ethical and
professional
principles,
Flexibility,
confidence, work
effectively with
others

36. Forensic Engineering, Science or both?
 Although this definition is applied to forensic engineering, it should be
acknowledged that this field is not only practiced by engineers but also by
other specialists involved with areas such as firefighting systems specialist,
corrosions specialist, mechanical specialists etc.
 Forensic engineers work with team of specialist to deeply investigate the
problem of facts.

37. The fundamental questions of fact
1. What is the failure or conditions of concern?
2. What is the magnitude and extent of the failure?
3. When did it occur (if this determination is
needed and desired)?
4. Why did it occur?

38. The fundamental questions of fact
 The last question is complex, and this causation question must often be
answered at multiple levels.
 Example roof failure
 causation higher level ( wind )
 causation lower level ( design of wind resistance is improper design)
 lowest causation ( faulty installations)
 The issue finding the Ultimate “Root Cause” of failure is the main concern the
forensic engineering.

39. Root Cause and Topical Cause
 It is common to arrive at a topical conclusion regarding the cause of failure
(eg. Wind).
 Which is not the root cause of failures (e.g. faulty installation).
 The root cause identification requires analysis based on detailed site
inspection information and subsequent analysis and review of literature,
pertinent codes and standards, and other information such as the obtained
from interview.

40. Root Cause and Topical Cause
 Often, whether in claims resolution discussions or in litigation, this
differentiation between topical cause and root cause of failure is at the core
of arguments between opposing parties involved in a dispute.
 The forensic engineer shall gather every evidence and utilized every possible
tools that make him closer to root cause.

41. Why Forensic Engineering?
 Two main Reasons why forensic professional are needed are typically distilled
down to;
 The desire by one or more parties to determine why a failure or issue occurred.
 The desire to seek this information usually involves determining responsible parties
so costs associated with the failure can be properly allocated.

42. Parties who need Forensic Determinations
 The two most likely categories of parties interested in employing forensic
professionals to make these determinations are associated with;
 The insurance industry
 Legal communities.
 Other parties, such as building owners, may have an interest in determining
these answers, but they are generally unwilling to incur in costs or do not
have the resources to employ such professionals.

43. Insurance Companies Desire
 Determine root cause failures and resulting responsible parties.
 Determine if they have coverage of a submitted claim based on root cause
failures and timing failure.
 Quantify the extent of damages.
 Determine if other parties may have coverage for a submitted claim.

44. Legal Community Desire
 Determine root cause failures and resulting responsible parties.
 Quantify the extent of damages.
 Quantify necessary repairs.
 Provide expert witness service for pending / actual litigations.
 Determine if claims have been appropriately addressed by the insurance
providers.

45. Influence on Improved Practices
 One of the more rewarding aspects of forensic engineering practice is the
opportunity to make recommendations on the basis of such an investigation.
 Forensic engineers have a role in disseminating information to design
professionals to improve procedures and products so that failures or accidents
are not repeated.
 Forensic engineers can have an impact on improved engineering design
practices.

46. Standard methodology for forensic
inspections
 It is important for efficiently and effectively reaching cause and origin
conclusions.
 Efficiently is not only the desire to minimize costs, but also to minimize time
needed.
 Effectively not includes not only the desire to efficiently use of money and
time resources, but to do it in a way that most likely will result in the ability
to actually make a determination of the cause and origin for specific claim.
 Such of an approach to reach an effective and efficient determination, a
consistent methodology that can be complied with the legal process is
needed.

47. Standard methodology for forensic
inspections
 Such of an approach to reach an effective and efficient determination, a
consistent methodology that can be complied with the legal process is
needed.
 The key steps to forensic inspection process are
1. Pre-inspection file preparation
2. Site inspection
3. Collection of evidences
4. Post-inspections written report.

48. Flexural Strengthening Case Study
 Internal & External Post Tensioning

49. Flexural Strengthening Case Study (overload)
US Census Bureau HQ Suitland, MD.

50. Flexural Strengthening Case Study (overload)

51. Flexural Strengthening Case Study (overload)

52. Flexural Strengthening Case Study (overload)

53. Flexural Strengthening Case Study (overload)

54. Flexural Strengthening Case Study (overload)

55. Flexural Strengthening Case Study (overload)

56. Flexural Strengthening Case Study (overload)

57. Flexural Strengthening Case Study (overload)

58. Flexural Strengthening Case Study (overload)

59. Flexural Strengthening Case Study (overload)

60. Case Study (Column jacketing)
 https://www.youtube.com/watch?v=aXP4oNzi6YM

61. Case study (FRP strengthening)
 https://www.youtube.com/watch?v=b4sVzPktjn0

62. Case study
 https://www.youtube.com/watch?v=hNStpyFPDU4 (mortar)
 https://www.youtube.com/watch?v=tdudT_BFHTA (water proofing )
 https://www.youtube.com/watch?v=9nuky8tY2To