Game Theory for Project Disputes

WEEK 8
1
[email protected]
Other ADR Processes and
Game Theory
Game theory for the behaviour of
firms under conflict and dispute.
How can PMs use Game Theory
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Lecture Outline
• Questions from last week
– Mediation or Arbitration?
– Is Arbitration ADR?
• Other ADR processes
• Game Theory
– Application in PM
• Bb Folder this week

[email protected] 2
Is Arbitration ADR
• The difference between Mediation and Arbitration
– Arbitrators hand down awards which are enforceable by
Law [in England Arbitration Act 1996 in the world
Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (New York, 1958) (the "New York
Convention")
• The 1958 Convention on the Recognition and Enforcement of
Foreign Arbitral Awards – known as the “New
York Convention”- has been described as the most important
and successful United Nations treaty in the area
of international trade law. Renaud Sorieul, the Secretary of
UNCITRAL has called it “the cornerstone of the
international arbitration system”.
• Mediators do not hand down awards which are enforceable
by Law
[email protected] 3
Mediation is ADR?
• Many other techniques
• Lots of people think mediation is the only ADR
technique
• In the USA Arbitration is often thought of ADR
• In the UK Arbitration is not thought of as ADR

• Why? Long history of Arbitration in UK [England and
Wales] Arbitration clause are common in Standard
Forms of contract therefore projects; Arbitration
Acts 1950, 1979, 1996
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Other ADR Processes
• An outline of other ADR processes than civil
and commercial mediation.
– Med-Arb
– Mini-trial (Executive Tribunal)
– Early Neutral Evaluation
– Expert Determination
– Dispute Review Boards DAPs DRAs
– Contracted Mediation
• Game theory!
– Cooperation
– Nudge theory
5 [email protected]
Med-arb
• Combination of mediation and arbitration

where the parties agree to mediate but if
that fails to achieve a settlement the
dispute is referred to arbitration.
• The same person may act as mediator
and arbitrator in this type of arrangement
• Wide-ranging debate on Med-Arb, few
seem to have any real experience of the
technique being used
• Med-arb popular in China?
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WEEK 8
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Mini-Trial (or Executive Tribunal)
• Voluntary non-binding process
• The parties involved present their respective
cases to a panel comprised of senior members
of their organisation
• The panel is assisted by a neutral facilitator and

has decision making authority
• The facilitator assists the senior party
representatives in their attempt to negotiate a
settlement.
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History of Mini-trial/Executive Tribunal
• TRW v Telecredit
• 30 months Patent dispute
• 100, 000 documents
• 4 Hours each over 2 days to a tribunal of
executives [hence in UK Executive Tribunal]
from each side
• Settled within 30 minutes
• Controlling Corporate Legal Costs: Negotiation and ADR
Techniques for Executives Kenneth James Thygerson
[email protected] 8
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Executive Tribunal
• The major benefits which are proposed are:
• Senior executives become involved and realise

the nature and severity of the dispute;
• Senior executives are given an opportunity to
hear the arguments from both sides;
• Senior executives are able to meet and discuss
settlement;
• Senior executives are not constrained by legal
remedies
9 [email protected]
Early Neutral Evaluation
• Private and non-binding technique where a third
party neutral (often legally qualified), gives an
opinion on the likely outcome at trail as a basis
for settlement discussions
• ENE (insert any other technique) is simply one
tool in the toolbox of dispute resolution
• SCL paper see Blackboard
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Expert Determination

• The expert is not bound by the Arbitration Acts, in particular
there is
no statutory right of appeal or determination of a preliminary
point of
law;
• An expert’s determination is not enforceable as a judgment in
the
same way as an Arbitrator’s award;
• The expert makes a decision on own expertise and
investigations,
and is not bound to receive evidence or submissions from the
parties, but is not in control of procedure, and must comply with
the
terms of the underlying contract from which authority is
derived;
• The expert is not bound to act judicially, but merely to avoid
fraud or
collusion and He may also be liable to the parties for
negligence;
• as an expert and not as an arbitrator
– http://en.wikipedia.org/wiki/Expert_determination
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DRA; DRB [DRP] [DAP]
• Dispute Review Advisor
• Dispute Review Board [Panel]
• Dispute Avoidance Panel

– Dispute Review Panel; and dispute adjudication
panel and dispute avoidance panel
• DAP and the olympics
• http://www.london2012.com/press/media-
releases/2008/04/independent-panel-set-up-to-smooth-
london-2012-construction.php
[email protected] 12
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http://www.london2012.com/press/media-
releases/2008/04/independent-panel-set-up-to-smooth-london-
2012-construction.php
WEEK 8
3
Topical [Important?] for Project
Managers
• Dispute Review Boards in forms
– DRB
– DRA

– DAP
• Why?
[email protected] 13 [email protected] 14
Dispute Review Boards
• Hong Kong Airport, $20 B
• Boston Central Artery $22 B
• Washington DC Subway ?$
• Los Angeles MTA Subway,
[email protected]
Contracted Mediation
• Contracted mediation attempts to fuse team building,
dispute avoidance and dispute resolution in one
procedure
• Contracted Mediation aims to change the culture of
confrontation that threatens successful project delivery
• The mediation framework is in place throughout a project
– The parties agree at the outset to manage and resolve any
differences that may arise with the assistance of a Contracted
Mediation Panel which follows the project through.
• REMEMBER THERE ARE MANY OTHER ADR
TECHNIQUES INCLUDING THE PETER FENN
JUGGLING SPECIAL

15 [email protected]
Game Theory
• Human behaviour
• Mathematics; Economics; Philosophy;
Computer science
• Logic; it’s all things to all men
• For our purposes we are going to consider
game theory in terms of the behaviour of
• http://en.wikipedia.org/wiki/Game_theory
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Use of Game Theory
• There has been considerable recent interest in
the use of game theory to explain firms’
behaviour; one measure is the Nobel Prizes
awarded for work in the area. Thomas
Schelling was awarded a Nobel Prize in 2005;
others include William Vickrey in 1996. Elinor

Ostrom in 2009
Current Thinking
• Combine the efficiency of competition with the
benefits of co-operation.
• [See Co-opetition by Brandenburger and
Nalebuff]
• Mass collaboration Wikinomics
– http://www.wikinomics.com/blog/
• The Evolution of Co-operation Axelrod
– There’s a link on Blackboard PLEASE
PLEASE PLEASE read it
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http://en.wikipedia.org/wiki/Game_theory
http://www.wikinomics.com/blog/

WEEK 8
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The Evolution of Cooperation
• cooperation evolves in three stages:
– cooperation will be initiated if firms have the
opportunity for future interaction; cooperation
will NOT be initiated by scattered firms who
have little chance of future interaction;
• cooperation will thrive where many other
strategies are being tried;
• cooperation once established will protect
itself from competitive strategies.
[email protected] 19 [email protected]
Game Theory
• The science of strategy
• Analysis of fortunes where
interdependency
• See www generally
• See Co-opetition by Nalebuff and

Brandenburger
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Crowd Sourcing and Funding
• Crowdsourcing obtaining needed services, ideas, or
content by soliciting contributions from a large group
of people, especially from an online community,
rather than from traditional employees or suppliers
• Crowdfunding (crowd financing, equity
crowdfunding, crowd-sourced fundraising)
collective effort of individuals who network and pool
their money
peter.fe[email protected] 21 [email protected]
Game theory examples
• Prisoner’s Dilemma
• Nash Equilibrium
• The problem of cooperation
• Chicken Game
• Monty Hall Problem
• Lots more
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[email protected]
The problem of cooperation

• Under what conditions will cooperation
emerge?: Axelrod Cooperation Theory
– cooperation will break out if there are sufficient firms in the
market place so that firms have a chance of affecting any future
interaction, once its up and running cooperation will thrive
where
many other strategies are being tried; and once running
cooperation established will protect itself from competitive
strategies
• Co-opetition; Creating and capturing value
• Creating value is an inherently cooperative process
• Capturing value is inherently competitive
The Game Theory Approach
Positional: Win/Lose
Principled: Win/Win
Game Theory Third Way: Win/Win or
Win/Lose
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WEEK 8
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Game Theory in Dispute
Resolution
– Game theory as an approach to dispute resolution
general consent that game theory provides the
appropriate tools for the analysis and eventual
resolution of disputes
– Tacit Bargaining and Information Escrow
– Ch 9&10 Commercial Conflict Management and
Dispute Resolution Fenn [Library 14 copies]
– The use of Game Theory to solve conflicts in the
project management industry J R San Cristobal at
Blackboard

Ancient and Modern
• Sun Tzu 8C BC – The Art of War
• Modern Partnering Alliancing etc
• Game theory argues against the use of
military [warlike] strategy in commerce and
business
Tacit Bargaining & Information
Escrow
• When asked to pick any number at random 4 in 10
people picked the number 1;
• When asked to predict a coin toss the overwhelming
majority call heads;
• When asked to pick an amount of money almost all
people chose a figure divisible by 10;
• When people were told that they had to meet someone
else – but had to guess the time – almost all chose
noon.
• Information Escrow [Harvard]

Game Theory and Auctions
• Types of auction
• Ascending price (English) auction
Bidders offer sequentially higher prices until there is one
left. Descending price (Dutch) auction Example: tulip,
tobacco. Prices start high and descend until a buyer is
found.
• Sealed-bid auction
Each bidder makes one bid, without knowing the others.
• Second-price auctions
Awarded to the highest bidder but for the second highest
price, so avoiding 'winner's curse'. [Vickrey]
• Problems with auctions
– Winner's curse
– Collusion
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Behavioural Economics
• Behavioural economics allows for irrational
behaviour and attempts to understand why
this may be the case
• Nobel Prize 2017
– Behavioural game theory

• 2020 Paul R Milgrom and Robert B
Wilson awarded prize 26 years after
game theory scholar John Nash
Game Theory to solve conflicts
in project management
• The use of Game Theory to solve conflicts
in the project management and
construction industry
• José Ramón San Cristóbal
– Available online at www.sciencesphere.org/ijispm
– International Journal of Information Systems and Project
Management, Vol. 3, No. 2, 2015 43-58
– In Bb Week 8 folder READ IT
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WEEK 8
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Nudge theory
• Richard Thaler’s “nudge theory” explains how small
interventions can encourage individuals to make different
decisions.
• Supermarkets
– attention can be drawn to certain products to
encourage consumers to spend money.
• Organ donation
• Tax reminders
• E-cigarettes
– 'Nudge unit' urges use of smokeless cigarettes. Why?
Smoking and preventable death
• Smoking is the leading cause of preventable death.
• Cigarette smoking is responsible for more
than 480,000 deaths per year in the United States,
including more than 41,000 deaths resulting from

secondhand smoke exposure.
• This is about one in five deaths annually, or 1,300
deaths every day
• www.cdc.gov/tobacco/data_statistics/fact_sheets/fast_facts/
index.htm#us-smoking
Next week
• International Disputes
• Coursework Workshop [you ask questions]
Other ADR Processes and
Game Theory
Game theory for the behaviour of
How can PMs use Game Theory
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http://www.cdc.gov/tobacco/data_statistics/fact_sheets/fast_fact
s/index.htm#us-smoking

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[email protected] 1
Introduction and Conflict Theory
Week #3 2022/23
2021 King Alfred Way Winchester
to Avebury
2023 Limburg
MSc Management of Projects 2022/23
Optional module: MACE 660061 Conflict Management &
Dispute Resolution: How many countries
• https://docs.google.com/document/d/1jm0z7nW2GYJTM1
Mveq_TtbX-LouqzQDHYIsKgLgmED0/edit
[email protected] 4
Office of the Independent Adjudicator OIA
• The Higher Education Act 2004 required the
appointment of an independent body to run a
student complaints scheme in England and Wales

and the OIA was chosen to operate this scheme in
2005
• http://www.oiahe.org.uk/
• 24% of all the complaints received by the Office
of the Independent Adjudicator during the last
year were from international students
[email protected] 5
Introduction and Conflict Theory
• Conflict Theory; Functional and Dysfunctional
Conflict; Task and Relationship Conflict, Types of
Conflict; Conflict continuum
• Conflict Management / Dispute Resolution
• The UK government’s approach
• Game theory
• Blackboard:
– 2 discussion threads; weblinks; workbook
[email protected] 6
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https://docs.google.com/document/d/1jm0z7nW2GYJTM1Mveq
_TtbX-LouqzQDHYIsKgLgmED0/edit
http://www.oiahe.org.uk/
2
[email protected] 7
Lecture format
• Spark interest
• Provide references
– Urls [lots]
– Papers [2, but…]
[email protected] 8
Professional Bodies
• Many homes for Professionals
– The Chartered Institute of Arbitrators
– APM
– The Royal Institution of Chartered Surveyors
– The Law Society

[email protected] 9
From War-War to Jaw-Jaw
• Wikinomics
– how mass collaboration changes everything
– http://www.wikinomics.com/book
• How people come together to preserve their
collective resources
– Nobel Prize 2009
– http://www.guardian.co.uk/science/2009/oct/12
/nobel-economics-prize-elinor-ostrom
The UK Government’s approach
• The Dispute Resolution Commitment
(DRC) requires government departments
and agencies to be proactive in the
management of disputes, and to use
effective, proportionate and appropriate
forms of dispute resolution to avoid
expensive legal costs or court actions.
– https://webarchive.nationalarchives.gov.uk/201302060204
41/http://www.justice.gov.uk/courts/mediation/dispute-

resolution-commitment/
Two pictures the same city
What is Conflict
• Conflict is an expressed struggle between at least
two interdependent parties who perceive
incompatible goals, scarce rewards, and
interference from the other parties in achieving
their goals.
– Conflict is natural and inevitable. People view conflict
as unpleasant.
– Conflict is inevitable. Although it is impossible to
eliminate conflict, there are ways to manage it
effectively.
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http://www.wikinomics.com/book
http://www.guardian.co.uk/science/2009/oct/12/nobel-
economics-prize-elinor-ostrom
https://webarchive.nationalarchives.gov.uk/20130206020441/htt
p://www.justice.gov.uk/courts/mediation/dispute-resolution-
commitment/

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Conflict Theory
• A theory of conflict does exist; it was founded by
Karl Marx. Marx expresses the theory in terms of
a class struggle; the struggle between classes
• One famous definition of economics is that it is a
study of the allocation of scarce resources which
have alternative uses. Conflict theory might be
expressed in a similar way; conflict is inevitable as
organisations seek to redistribute scarce resources.
This is a classic Marxist view.
Conflict and Dispute
• Mary Parker-Follett
• Functional and
Dysfunctional Conflict
– http://mpfollett.ning.com/

Functional and Dysfunctional
Conflict
• Functional conflict: works toward the
goals of an organization or group
• Dysfunctional conflict: blocks an
organization or group from reaching its
goals
Functional and
• Functional conflict
– “Constructive Conflict”--Mary Parker Follett
(1925)
• Increases information and ideas
• Encourages innovative thinking
• Unshackles different points of view
• Reduces stagnation
• Is Competition
Functional and

• Dysfunctionally high conflict
– Tension, anxiety, stress
– Drives out low conflict tolerant people
– Reduced trust
– Poor decisions because of withheld or distorted
information
– Excessive management focus on the conflict
Functional and
• Dysfunctionally low conflict
– Few new ideas
– Poor decisions from lack of innovation and
information
– Stagnation
– Business as usual
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http://mpfollett.ning.com/
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Types
of Conflict
Individual
Group
Organization
Type of conflictLevel of conflict
Within and between organizations
Within and between groups
Within and between individuals
Inter and Intra Organisational
• Inter between; Intra within
• See
– Towards a comprehensive model for the assessment
and management of intraorganisational conflict:
developing the framework Jameson J (1999)
– International Journal of Conflict Management Vol 10

Iss 3 p 268-294
• This module is concerned with Inter
Organisational Conflict and Dispute
Task and Relationship Conflicts
• Task something that should be done e.g. the design, the
product, the programme
• Relationship something involving people
• Always inter-related e.g. Peter didn’t do the design, did it
late or did it badly – I don’t like Peter
• De Dreu, C. K. W., & Weingart, L. R. (2003). Task
versus relationship conflict, team performance, and
team member satisfaction: A meta-analysis. Journal
of Applied Psychology, 88(4), 741–
749. https://doi.org/10.1037/0021-9010.88.4.741
Conflict
Dispute
Avoidance

Negotiation
ADR; ADJ; ARB; Litigation; Beyond
Conflict Continuum
Conflict and Dispute
• Conflict can be managed
• Disputes need 3rd party resolvers
• Dispute = dysfunctional conflict
Conflict Management
• Non-binding
• PROJECT
MANAGEMENT
– Dispute Review
Boards/Dispute Review
Advisers
– Negotiation
– Quality Matters TQM QA
– Risk Management

– Procurement Systems
– Partnering
– PROJECT
MANAGEMENT
• Binding
• Partnering
• Alliances
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https://psycnet.apa.org/doi/10.1037/0021-9010.88.4.741
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• The Dispute Resolution Board Foundation
– http://www.drb.org/
• NB FIDIC DAB’s
– International Federation of Consulting

Engineers; Dispute Adjudication Board
• Olympics NEC IDAP
– New Engineering Contract; Independent
Dispute Avoidance Panel
• three-member DRBs solve disagreements before
they can delay or disrupt projects. The Board is a
panel of three experienced, respected and impartial
reviewers, usually with a construction background
instead of a legal background. Organized prior to
start of construction, the panel is selected mutually
by the project owner and the contractor/supplier
pe[email protected] 27
• Since 1975 used in over $28 billion in projects
worldwide,
• DRB Foundation say 408 construction contracts,

of over 570 disputes, all but 13 were resolved by
the DRB (ten of these on one unique project).
• Parties accept the DRB's recommendation
– their confidence in the panel's technical expertise
– their confidence in the validity and openness of the
process.
• Hong Kong Airport, $20 B
• Boston Central Artery $22 B
• Washington DC Subway ?$
• Los Angeles MTA Subway,
Dispute Resolution Adviser
• The concept was developed in Hong Kong
by Colin Wall of Commercial, Mediation
and Arbitration Services
• Queen Mary Hospital HK

• http://www.cannonway.com/web/page.php?
page=20
Other Conflict Management
• Project Management
• Quality Matters TQM QA
• Risk Management
• Procurement Systems
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http://www.drb.org/
http://www.cannonway.com/web/page.php?page=20
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Partnering/Relationship Contracting
• http://www.constructors.com.au/wp-
content/uploads/1999/02/Relationship-Contracting-

Optimising-Project-Outcomes-1999.pdf
• Relationship contracting is a flexible approach
to establish and manage relationships between
clients and contractors and to implement
proven practices and techniques to optimise
project outcomes
• Alliances - Alliancing
Dispute Resolution
• Non-binding
• Conciliation
• Executive Tribunal
• Mediation
• Negotiation
• Binding
• Adjudication
• Arbitration
• Expert Determination

• Litigation
• Negotiation
Dispute Resolution Guidance
Office of Government Commerce
• The OGC is now archived but the document
is available at Blackboard in the week 2
folder
• COMPARISON OF DISPUTE
RESOLUTION
Compare and Contrast Dispute
Resolution
• Headings
– Formality
– Speed
– Flexibility
– Cost
– Confidentiality

– Adversarial
– Party Control
– Party Choice
– Creative
Solution
s
Win Win Lose Lose
• Win Win
• Win Lose
• Lose Win
• Lose Lose

Game Theory
• The science of strategy
• Analysis of fortunes where interdependency
• See internet generally
• See Co-opetition by Nalebuff and
Brandenburger
– http://en.wikipedia.org/wiki/Coopetition
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http://www.constructors.com.au/wp-
content/uploads/1999/02/Relationship-Contracting-Optimising-
Project-Outcomes-1999.pdf
http://en.wikipedia.org/wiki/Coopetition

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Win Win or Win Lose
• Gore Vidal: It is not enough to succeed.
Others must fail.
• Bernard Baruch: You don’t have to blow
the other fellow’s light to let your own
shine.
Economics Nobel Prize 220
• Game theory again
• https://www.theguardian.com/science/2020/
oct/12/us-game-theory-specialists-win-
nobel-prize-in-economics
• The economist David Blanchflower, a former Bank of England

policymaker,
said the award failed “to reward people for finding things about
the real world
rather than for playing economic games. The Nobel prize in
economics once
again goes to a couple of old white men who published esoteric
mathematical
squiggles years ago that have little or no bearing on the lives of
ordinary
people. Their work has nothing to say about improving the
condition of the
man or woman on the Clapham omnibus”.
Discussion Threads
• Dispute: Avoidance; Management and Resolution

100 words. Do you agree with the UK
government? Is it: avoid; manage or resolve?
• Is there a difference between conflict and
disputes? What about a differences between
Social Conflict & Dispute and Commercial
Conflict & Dispute?
• State your opinion; not exceeding 100 words
Report
• Start or beginning
– Literature review
• Middle
– Develop idea/argument

• End
– Reach a conclusion
• Answer the question
How to Disagree
[email protected]
Two Important Books?
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https://www.theguardian.com/science/2020/oct/12/us-game-
theory-specialists-win-nobel-prize-in-economics
8

Conflict Management and
Dispute Resolution
Week #3 2022/23
43
MSc Management of Projects Week 7
[email protected] 1
[email protected] 1
Remember, remember the fifth of
November
• Remember, remember the fifth of November,

Gunpowder treason and plot.
We see no reason
Why gunpowder treason
Should ever be forgot!
Guy Fawkes, guy, t'was his intent
To blow up king and parliament.
Three score barrels were laid below
To prove old England's overthrow.
And what shall we do with him?
Burn him! Guy [Guido] Fawkes
Guy Fawkes and Salford
• Ordsall Hall and the daughter of Sir John Radclyffe and his
wife Lady Anne Ashaw. Sir John was not keen

• Guy Fawkes went away and conspired with others to plant
bombs and blow up the Houses of Parliament
• Failed Gunpowder Plot of 1605 – Fawkes was sentenced
to be hanged, drawn and quartered.
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Mediation
Week 7
ADR
• Alternative Dispute Resolution
• Appropriate Dispute Resolution
• Another Damn Rip-off
• Mediation is the most common ADR
technique [I’ll say more about the others in
Week 11]

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Altruism
• Altruism refers to behaviour that benefits
another individual at a cost to oneself. For
example, giving your lunch away is
altruistic because it helps someone who is
hungry, but at a cost of being hungry
yourself.
• Is altruism only found in humans?
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Altruism or Cooperation
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[email protected] 2
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Mediation
• Mediation is a way of settling disputes in which a third
party, known as a mediator, helps both sides to come to
an agreement which each considers acceptable.
Mediation can be ‘evaluative’, where the mediator gives
an assessment of the legal strength of a case, or
‘facilitative’, where the mediator concentrates on
assisting the parties to define the issues. When a
mediation is successful and an agreement is reached, it is
written down and forms a legally binding contract, unless
the parties state otherwise.
I’m going to spend a whole
session on mediation

• Because its often thought to be
– The most common
– The most appropriate [ADR]
– An introduction to all the techniques
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Mediation
• An intro
• https://www.youtube.com/watch?v=t1vw01
U5YDs
• There are lots
» Of videos
» Of mediators
» Of models

» Of charts
» Of everything
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Conflict
Dispute
Avoidance
Negotiation
ADR [Mediation]; ADJ; ARB;
Litigation; Beyond
Conflict Continuum
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Mediation Continuum

Facilitative
Mediator offers no opinion
Evaluative
Mediator Suggests/Recommends
Mediation
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Mediation
• Describe/How
• Party (ies) phone a mediator [or a mediation
provider e.g. CEDR/CIArb/There are lots]
• Mediator arranges a meeting
• Mediator assists the parties
• Parties settle or not
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https://www.youtube.com/watch?v=t1vw01U5YDs
[email protected] 3
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Mediation
• Mediation the most widely used and accepted ADR
technique; Contingency approach; No prescriptive
mediation process
• Examples:
– UN
https://www.youtube.com/watch?v=aofBEZM-jHE

inter intra
– https://ukmediation.net/latest/videos/
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The Multi door Courthouse
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The Multi-Door courthouse
• Frank Sander
– Multi-Door Courthouse
• http://www.pon.harvard.edu/daily/conflict-resolution/a-
discussion-with-frank-sander-about-the-multi-door-courthouse/
– Singapore
• http://www.singaporelaw.sg/sglaw/laws-of-
singapore/overview/chapter-3

– Nigeria
• http://www.lagosmultidoor.org/
– Washington DC
•
http://www.dccourts.gov/internet/superior/org_multidoor/main.
jsf
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Mediation Principles
• Early theory – one type, Facilitative or Interest
Based Mediation
• Some mediators recognised that parties’ rights
would sometimes need to be considered –
Evaluative or Rights Based Mediation
• Similar development of Settlement Based
Mediation

• 1990’s Facilitators developed Transformative
Mediation
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Facilitative Mediation (Interest
Based)
• Mediator structures a process to assist the
parties in reaching a mutually agreeable
resolution
• Mediator asks questions; validates and
normalizes parties' points of view; searches
for interests underneath the positions taken
by parties; assists the parties in finding and
analyzing options for resolution.

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Based)
• The facilitative mediator does not make
recommendations to the parties, give advice
or opinion as to the outcome of the case, or
predict what a tribunal would do in the case.
• The mediator is in charge of the process,
while the parties are in charge of the
outcome.
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https://www.youtube.com/watch?v=aofBEZM-jHE
https://ukmediation.net/latest/videos/
http://www.pon.harvard.edu/daily/conflict-resolution/a-

discussion-with-frank-sander-about-the-multi-door-courthouse/
http://www.singaporelaw.sg/sglaw/laws-of-
singapore/overview/chapter-3
http://www.lagosmultidoor.org/
http://www.dccourts.gov/internet/superior/org_multidoor/main.j
sf
[email protected] 4
19
Based)
• Facilitative mediators want to ensure that parties
come to agreements based on information and
understanding. They hold joint sessions with all
parties present so that the parties can hear each
other's points of view, but hold private meeting
(caucuses) regularly with the parties where they
explore options and test the parties’ positions.

Facilitative mediators seek for the parties to have
the major influence on decisions made, rather than
the parties’ advisors; legal or otherwise.
20
Evaluative Mediation (Rights
Based)
• Mediator assists the parties in reaching resolution
by pointing out the weaknesses of their cases, and
predicting what a tribunal would be likely to do.
• Based on the parties’ rights an evaluative mediator
makes formal or informal recommendations to the
parties as to the outcome of the issues.
21
Settlement Mediation

• Settlement mediation (compromise mediation) takes as its
main objective encouragement of incremental bargaining,
towards a compromise a central point between the parties
positional demands.
• Settlement Mediators control both the parties and the
process
• Mediator seeks to determine the parties’ bottom line. Then
through persuasive interventions the mediator moves the
parties off their initial positions to a compromise point
22
Transformative Mediation
• The ‘newest’ concept based on the values of

"empowerment" of each of the parties as much as possible,
and "recognition" by each of the parties of the other
parties' needs, interests, values and points of view.
• The potential for transformative mediation is that any or all
parties or their relationships may be transformed during the
mediation.
• Transformative mediators meet with parties together, since
only they can give each other "recognition".
23
Transformative Mediation
• Transformative mediation continues and expands
the facilitative model, in its interest in
empowering parties and transformation.
• Modern transformative mediators want to continue

that process by allowing and supporting the parties
in mediation to determine the direction of their
own process.
• In transformative mediation, the parties structure
both the process and the outcome of mediation,
and the mediator follows their lead.
24
Arguments for and against the
mediation models
• Facilitative and transformative mediation:
– empower parties
– help the parties take responsibility for their own
disputes and the resolution of the disputes.
• Critics say that facilitative and transformative mediation:
– takes too long
– too often ends without agreement.

• There are legitimate worries that outcomes can be contrary
to standards of fairness and that mediators in these
approaches cannot protect the weaker party
19 20
21 22
23 24
[email protected] 5
25
mediation models
• Proponents of transformative mediation say

that facilitative and evaluative mediators put
too much pressure on clients to reach a
resolution.
• Transformative mediators believe that the
clients should decide whether they really
want a resolution, not the mediator
26
mediation models
• Proponents of evaluative mediation say that clients want an
answer when they are unable to reach agreement, and they
want to know that their answer is fair.
• Critics of evaluative mediation say that its popularity is

due to the lawyers and advisors who choose evaluative
mediation because they are familiar with the process.
• Critics believe that the clients would not choose evaluative
mediation if given enough information to make a choice.
• Critics worry that the evaluative mediator may not be
correct in the evaluation of the case.
27
Other mediation models
• Narrative Mediation
• The Peter Fenn Juggling model
• Many Many Models
• Remember Commercial Disputes
– Is the juggling/narrative/transformative model

appropriate?
28
The Benefits of Mediation
• Consensual
• Control
• Cost savings
• Continuing business relations
• Confidentiality
• Creative
29
Mediation Around the World
• China [the east generally] – traditional

• UK – strong support from Government
• USA – similar
• Europe
– 2002 European Commission published a discussion
paper on alternative dispute resolution
– 2011 The Cross-Border Mediation (EU Directive)
30
Mediation the next move
• Mediation for all disputes?
• Even crime?
25 26
27 28
29 30

[email protected] 6
Mediation the next move
• Dubai Chamber launches online mediation
service
– http://www.khaleejtimes.com/article/20121016/
ARTICLE/310169805/1037
• On line Dispute Resolution
– The United Nations Commission on International Trade Law
(UNCITRAL) working group III has been working on issues
connected with the preparation of legal standards on ODR since
2010

31
Google it: Mediation in project
management
• Be careful!
• Try refereed journal papers, there’s lots
– Mediation in the construction industry: an international
review
– Investments in information systems and technology in
the healthcare: Project management mediation
– Organisational Maturity and Project Success in
Healthcare-The Mediation of Project Management.
32
33

Mediation
Week 7
31 32
33
http://www.khaleejtimes.com/article/20121016/ARTICLE/31016
9805/1037
1
Dispute Resolution
Peter Fenn
Twitter peterfenn99 #MACE 66061
Facebook peter.fenn

[email protected]
Don’t assume you know the answer
[email protected]
I ♥ U
[email protected]
Best Thing About Manchester
• The University?
• The Football?
• The Shopping?
• The Nightlife?
• Peter Fenn?
Best Thing About Manchester
• Just 30 miles away from Liverpool
3 Points

• This is an introduction
– Conflict and or Dispute
– Peter Fenn and the course
• The topics
• Coursework
• Modes of delivery
– Discussion threads
– PM or IPM?
[email protected] 6
1 2
3 4
5 6

http://www.manchester.ac.uk/
2
Disputes
• 孫子兵法 The Art of War
• Paul Klee Dispute
How many countries?
• I say 10
• Fill in the google document at
https://docs.google.com/document/d/1jm0z
7nW2GYJTM1Mveq_TtbX-
LouqzQDHYIsKgLgmED0/edit
• It’s linked at Blackboard

• I’ll tell next week
[email protected]
IPM or [normal] PM
• Independent Project Manager consultant IPM
Project Manager employee PM
• Half of project managers will be independent
workers by 2020! http://www.projectation.com/half-of-project-
managers-will-be-independent-workers-by-2020/
• Top 4 Reasons to hire an Independent Project
Manager
• https://www.pamwarren.co.uk/personal-blog/top-4-reasons-to-
hire-an-
independent-project-manager/
• The UK consulting Model

[email protected] 9
Types
of Conflict
Individual
Group
Organization
Type of conflictLevel of conflict
Within and between organizations
Within and between groups
Within and between individuals
The 20 Km high Project
[email protected]
Peter Fenn Introduction

• Chartered Surveyor
• Fellow of Chartered Institute of
Arbitrators
• Mediator
• Adjudicator
• Expert
[email protected]
7 8
9 10
11 12
https://docs.google.com/document/d/1jm0z7nW2GYJTM1Mveq
_TtbX-LouqzQDHYIsKgLgmED0/edit
http://www.projectation.com/half-of-project-managers-will-be-
independent-workers-by-2020/
https://www.pamwarren.co.uk/personal-blog/top-4-reasons-to-
hire-an-independent-project-manager/

3
Modes of Delivery
• Lectures Synchronous and Asynchronous via podcast system
– About 1300-1345 then a break, 1400-1430 then finish tutorial
questions and discussion
• Tutorials
– Exercises via Blackboard
• In weeks 3, 4, 5, 6 and 7 usually 2 exercises
• Exercises remain on blackboard for 14 days [1300hrs on the
day of
the lecture until 1300hrs 14 days later] some examples this
week NO
MARKS

• Socratic method
• Workbook [link on Bb]
• Weblinks via Bb I make mistakes lots of them
[email protected]
My approach?
I have never in my life learned anything from any
man who agreed with me
Dudley Field Malone
http://www.law.umkc.edu/faculty/projects/ftrials/scopes/scopes.
htm
Conflict is the gadfly of thought. It stirs us to observation and
memory. It instigates to invention. It shocks us out of
sheeplike passivity, and sets us at noting and contriving
John Dewey
Mary Parker Follett

[email protected]
The Topics
• Conflict Theory [Conflict Management, Dispute Resolution]
• Comparison of Dispute Resolution Techniques
• Bribery and Corruption
• Negotiation
• Alternative Dispute Resolution via:
• Expert Determination
• Conciliation;
• Dispute Review Boards (Advisors)
• The concepts and principles of Mediation
• Arbitration; International Disputes; Litigation
• Game theory

[email protected]
The Assessment
• 2 hour unseen examination – 70 marks
• Coursework - 30 marks
– One 2000 word report - 20 marks;
– Blackboard exercises [quizzes; discussions and role
plays] - 10 marks. Usually there will be 2 exercises
per week. The Blackboard exercises are made available
to students at the start of each lecture and are closed 14
days later. If you do not complete the Blackboard
exercises you will not get any marks.
• Total 100 marks
[email protected]
Module Aim
• To develop a critical understanding of
the factors that influence commercial

conflict and disputes with emphasis on
management and avoidance. In
particular the principles and practice
of dispute resolution via: ADR;
Adjudication; Arbitration and
Litigation.
[email protected]
Learning outcomes
• At the end of this module a student will
– ?
– Have developed a critical understanding of the
factors that influence commercial conflict and
disputes with emphasis on management and

avoidance. In particular the principles and
practice of dispute resolution via: ADR;
Adjudication; Arbitration and Litigation.
[email protected]
13 14
15 16
17 18
http://www.law.umkc.edu/faculty/projects/ftrials/scopes/scopes.
htm
4
Module texts
Recommended for purchase:
Fisher and Ury (1999), Getting to Yes ISBN 0-

09-924842-5.
Useful texts:
The Art of War 孫子兵法 Sun Tzu ISBN
9781599869773
Axelrod, R (1984) The Evolution of Cooperation ISBN
0140124950
Brown, H and Marriot A. (1999) ADR Principles
and Practice ISBN0421462604
[email protected]
Conflict
Dispute
Avoidance
Negotiation
Conflict Continuum

[email protected]
Beyond?
• Wider Conflict [and violence]
• The Manchester Bomb
[email protected]
Blackboard Exercise
• 2 discussion threads in weeks 3, 4, 5, 6 and
7
– Some threads this week as a practice exercise
[not assessed]
• 1 Exciting competition
[email protected]
Weblinks
• Conflict Theory

• Dudley Field Malone
• Kurt Jones
• UK Government's approach
– Disputes are time consuming, expensive and unpleasant. They
can
destroy client/supplier relationships which have been
painstakingly
built up over long periods of time. Disputes can add
substantially
to the cost of a project even making a project unsuccessful,
unfeasible or nullifying any benefits
• Socratic Method
• Manchester Bomb
• 20 Km high project
[email protected]
Questions for survey on the
Mentimeter

• Do you agree that [in your country/industry]
conflict and dispute are inevitable
• To think about: this is:
1. A good thing;
2. A bad thing
• What are the causes of conflict [in your
country/industry]
[email protected]
19 20
21 22
23 24
5

Blackboard Discussion threads
• At the discussion board post a brief note
[<100 words] Conflict and Dispute are
inevitable on Projects/ in PM?
• At the discussion board post a brief note
[<100 words] explaining your opinion on
the causes of Conflict and Dispute
[email protected]
Next week
• Conflict theory students to consider
– History via
http://web.grinnell.edu/courses/soc/s00/soc111-
01/IntroTheories/Conflict.html
– Commercial Conflict via?

• Does conflict theory apply to PM?
• UK Government’s approach via: OGC
document Dispute Resolution Guidance in
Week 2 folder
[email protected]
Dispute Resolution
Peter Fenn
It’s a dolphin not a shark
[email protected]
25 26
27
http://web.grinnell.edu/courses/soc/s00/soc111-
01/IntroTheories/Conflict.html

http://www.manchester.ac.uk/
11/10/2022
1
[email protected] 1
CONFLICT MANAGEMENT
AND DISPUTE AVOIDANCE
Week #4 2022/23
Workbook Ch3 plus ch8
I HAVE TO BE SOMEWHERE ELSE AT 1415 SO TODAYS
SESSION FINISHES
AT 1400
Three things to make you think?
• Dispute Avoidance

• Collaboration [Testosterone?]
• Dabbawala
[email protected] 3
Conflict
Dispute
Avoidance
Negotiation
Conflict Continuum
The difference: conflict and or dispute
• Remember the continuum
• Conflict all around
• Disputes may break out from [badly managed] conflict

• Conflict needs managing
• Disputes need avoiding or resolving
• Is conflict management the same as dispute avoidance?
Lots of Information e.g. Conflict Management
Thomas-Kilmann Conflict Mode Instrument
[NB Inter or Intra]
Dispute Resolution is easy [its clearly defined]
there is a third party
• PM decides [PM decision]
• Adjudication [construction mostly]
• Arbitration
• Litigation
• ADR
• Lots of techniques
• Mediation

• Blah
• Blah
• Peter Fenn Juggling Technique
1 2
3 4
5 6
11/10/2022
2
Conflict Management or Dispute Avoidance
• Dispute Avoidance is avoiding something happening
• Conflict management is managing something that is happening
• Dispute Avoidance
• Heathrow Terminal 5 – collaboration plus risk management

• Dabbawallah – collaboration + ?
• Conflict Management
• Collaboration
• Negotiation
Two books one idea: is it all about the big T?
Males negotiate
differently than
females?
Males are more
aggressive?
Males are more
likely to be
individuals not
team players and
less likely to
collaborate
Dispute Avoidance 3 ideas

• Some would say procurement and contracts are central to
Conflict
Management and Dispute Avoidance
• Workbook Ch 3
• The best solution is to avoid disputes
• Latham, M. (1994) Constructing the Team, HMSO, London
• Collaboration
• Workbook Ch 8
Dispute avoidance
Workbook Chapter 3 The Heathrow Terminal 5 Example
The Dabbawala
APM BoK development Over the Years [BoKs]
• 5th Edition
• Conflict Management References 15
• Dispute resolution Refs 7
• 6th Edition

• Conflict Management Refs 11
• 7th Edition
• Conflict Management Refs 1
7 8
9 10
11 12
11/10/2022
3
Dabbawala #IncredibleIndia

• 200,000 lunch [tiffin] boxes get moved every day by an
estimated
4,500 to 5,000 dabbawalas
• One mistake in every 6,000,000 deliveries
• Disputes are inevitable?
Why are the dabbawallas so successful
• A six-sigma process is one in which 99.99966% of the
products
manufactured are statistically expected to be free of defects.
• Great interest – UN, Universities, King Charles, the
Whitehouse
• Why?
• Dabbas are illiterate
• Colour coding system
• Organisational Structure – everyone gets paid the same,
remember Marx no
conflict over resources

Cooperation and collaboration
• Should a distinction be made between cooperation and
collaboration?
• I don’t make one
Gender, Testosterone and Philosophy
• Women negotiate differently than men
• People from Eastern Philosophies negotiate differently than
people
from Western Philosophies
• Americans/Canadians negotiate differently than
English/Chinese/Irish
• Males are more aggressive?
• Males are more likely to be individuals not team players and
less
likely to collaborate

• Its all down to Testosterone
When will Cooperation take place
• The Evolution of Cooperation Axelrod: the argument is that
the evolution of cooperation requires
that firms and organisations will cooperate if there is a
sufficiently large chance that they will
meet again in order that they have a stake in their future
interaction. Given these circumstances
cooperation evolves in three stages:
• cooperation will be initiated if firms have the opportunity for
future interaction; cooperation
will NOT be initiated by scattered firms who have little chance
of future interaction;
• cooperation will thrive where many other strategies are being
tried;
• cooperation once established will protect itself from

competitive strategies
Discussion Threads
• What factors might affect collaboration/cooperation on
Projects
• If Conflicts are inevitable explain the dabbawalla
13 14
15 16
17 18
MSc Management of Projects week 6
[email protected] 1
[email protected] 1
Conflict Management &

Dispute Resolution
Negotiation
1 OR 50 PEOPLE
• A tram entering Piccadilly has failed brakes; there are 2
tracks available. One will see the tram crash into a wall
killing the 50 passengers the other will save the 50
passengers but kill a worker on the tracks. You are
standing on the platform. You designed the signalling/the
track/the tram. All it takes is you to flip your switch and
direct the tram
– To kill 50 people
• OR
– To kill 1 person
• Which do you choose?
The Big Guy

• A tram entering Piccadilly has failed brakes and will surely
kill the 50 people on board. You are standing on the
platform next to a really big guy. You have studied statics
and dynamics you realise that if the tram hit the big guy
full on it would come to a gentle stop kill the big guy and
save the 50 people on board but only if he was on the
tracks. You know you could push him onto the tracks
• Push or not?
Aim and Objectives
• This lecture aims to explore the subject of negotiation as it
applies to PMs
• Objectives
– To introduce The Program on Negotiation at
Harvard Law School (PON)
– To explore theories of negotiation
– To consider the factors affecting negotiation e.g.

culture via Hofstede’s cultural dimensions theory
– To consider concepts from other cultures e.g. Guanxi;
Wasta; Schadenfreude etc.
[email protected] 4
Haggling = Negotiation?
• In the UK:
– The price quoted is the price
• Some exceptions
– Houses; 2nd hand Cars;?
• Things are changing – some shops will
listen to offers
• Some people like to haggle most do not

Material
• For this lecture students are referred to the
course text: Getting To Yes
• www.pon.harvard.edu
http://www.pon.harvard.edu/
[email protected] 2
[email protected] 7
PON
• The Program on Negotiation at Harvard
Law School (PON) is a world-renowned
interdisciplinary center on negotiation and
conflict resolution. Drawing from numerous

fields of study, including law, business,
government, psychology, economics,
anthropology, and education, PON works to
connect rigorous research and scholarship
with a deep understanding of practice.
Jargon
• BATNA [Best Alternative to a negotiated
settlement]
• WATNA [Worst …]
WIN WIN
• WIN LOSE
• Often linked to game theory Wikipedia is
good
[email protected] 8
Negotiation

• Positional Neg Distributive Old Bad
– Win/Lose Splitting the Pie
Postional
• Integrative Neg PON better
– Expanding the Pie
• Principled Neg New Good
– Win/Win Increasing or Expanding the Pie
Negotiation
• Main Theories:It is common for theorists
talk of two negotiation theories or strategic
approaches to negotiation:

• Positional Negotiation
• Principled Negotiation
– Principled negotiation flowed from the Harvard
Negotiation Project (Integrative Approach)
Types of negotiation
• Dispute negotiation, focused on resolving
past facts; and
• Transaction negotiation, focused on
reaching agreement for the future
The Positional Approach
• Manipulative approach designed to intimidate the
other party such that they lose confidence in their

own case and are pressurised to accept the other
side’s demands. Characterized by:
– High opening demands;
– Threats, Tension and Pressure;
– Stretching the facts;
– Sticking to positions;
– Being tight lipped;
– Desire to outdo, outmanoeuvre the other side; and
– Desire for clear victory.
[email protected] 3

Assumptions of the Positional
Approach
• Negotiation is the division of limited
resources;
• One side's gain is the other's side's loss; and
• A deal today will not materially affect
choices available tomorrow
Risks of the Positional
Approach
• Confrontation leads to rigidity;
• There is limited analysis of merits of dispute and
relevant criteria for resolving issues;
• There is limited development of solution
alternatives;

• Difficulty in predicting the outcome of the
competitive approach or control the process;
• Competitors are generally blind to joint gains;
• Competitors threaten their future relations;
• Competitors are more likely to have impasse and
increased costs.
Positional/Integrative/[Distribu
tive] or Principled
• Positional
• The Integrative Approach and The Harvard
Negotiation Project PON Harvard
• Getting to Yes Principled

Getting to Yes
• The Harvard Negotiation Project
• http://www.pon.harvard.edu/
Principled Negotiation
• 4 Point Plan
• People: Separate the people from the
problem
• Interests: Focus on interests not positions
• Options: Generate a variety of possibilities
before deciding what to do
• Criteria: Insist that the result be based on

some objective criteria
People
• Separate the people from the problem
• Human beings are not computers but:
– creatures of great emotion
– who struggle to communicate
– emotions get entangled
• Before the substantive problem disentangle the
people problem
• The participants should see themselves as working
to attack the problem not each other
http://www.pon.harvard.edu/

[email protected] 4
Interests
• Focus on interests not positions
• The object of negotiation should be to
satisfy underlying needs
• Negotiation position obscures what is
wanted
[email protected]uk 20
Options
• Generate a variety of possibilities before
deciding what to do

• Difficult to design optimal solutions when
under pressure
• Think up a wide range of possible solutions
which advance shared interests
• Invent options for mutual gain
Criteria
• Insist that the result be based on some
objective criteria
• Where interests are directly opposed
• Insist on independent standard
• Market value, expert opinion, custom or law

The Principled Approach
• Win Lose
• Positional Negotiation Old Bad
• Distributive
• Win Win
• Integrative Negotiation PON better
• Principled Negotiation New Good
– Principled negotiation flowed from the Harvard
Negotiation Project (Integrative Approach)
Culture and Negotiaon
• Problems

• Many cultures
– Impossible to talk of A SINGLE WESTERN
CULTURE
– Just like its impossible to talk of A SINGLE
EASTERN CULTURE
• Hofstede developed a cultural dimensions
theory
Hofstede: cultural dimensions theory
• Framework for cross-cultural communication
• how people from differing cultural backgrounds
communicate: among themselves; and how they

endeavour to communicate across cultures
• 4 then 5 then 6 dimensions
• individualism-collectivism; uncertainty avoidance;
power distance; masculinity-femininity (task
orientation versus person-orientation); long-term
orientation and indulgence versus self-restraint.
[email protected] 5
• Power distance index (PDI): “the extent to which the less
powerful members of organizations and institutions accept

and expect that power is distributed unequally.”
• Individualism vs. collectivism (IDV): “degree to which
people in a society are integrated into groups.”
Individualistic - loose ties that often only relates an
individual to his/her immediate family. Collectivism,
tightly-integrated relationships tie extended families and
others into groups.
25
• Uncertainty avoidance index (UAI): “a society's tolerance
for ambiguity,” which people embrace or avert an event of
something unexpected, unknown, or away from the status

quo. Stiff codes of behaviour, guidelines, laws, and
generally rely on absolute Truth. A lower degree in this
index shows more acceptance of differing thoughts/ideas.
Society tends to impose fewer regulations, ambiguity
accepted and the environment is more free-flowing
• Masculinity vs. femininity (MAS):
• masculinity is defined as “a preference in society for
achievement, heroism, assertiveness and material rewards
for success.”
• Femininity “a preference for cooperation, modesty, caring
for the weak and quality of life.” Women in the respective

societies tend to display different values.
• Feminine societies vs masculine societies,. This dimension
is frequently viewed as controversial even taboo in highly
masculine societies.
• Long-term orientation vs. short-term orientation
(LTO): The connection of the past with the current
and future actions/challenges.
– A lower degree (short-term) indicates that
traditions are honoured and kept, while
steadfastness is valued.

– High degree (long-term) views adaptation and
circumstantial, pragmatic problem-solving as a
necessity
• Indulgence vs. restraint (IND): a measure of happiness;
whether or not simple joys are fulfilled. Indulgence -“a
society that allows relatively free gratification of basic and
natural human desires related to enjoying life and having
fun.” counterpart - “a society that controls gratification of
needs and regulates it by means of strict social norms.”
Indulgent societies believe themselves to be in control of
their own life and emotions; restrained societies believe

other factors dictate their life and emotions.
Compare Countries
• https://www.hofstede-
insights.com/product/compare-countries/
https://www.hofstede-insights.com/product/compare-countries/
[email protected] 6
Concepts from other cultures
• Guanxi 关系 [Wasta; blat; Pituto, old boy

network]
• Face
– mian面
– lian脸
– yan颜
• Face-negotiation theory
• Schadenfreude
Play
• Chinese schools 'robbing young of
individuality'
• "Chinese children do not play enough. They
should play more," Mr Xi said.

Can Negotiation be taught?
• Or is it learned
• How should negotiation be taught?
• How will we negotiate in this global
village?
http://en.wiktionary.org/wiki/%E9%9D%A2
http://en.wiktionary.org/wiki/%E8%84%B8
http://en.wiktionary.org/wiki/%E9%A2%9C
18/10/2022
1
MACE 66061

Week 5
Professionalism, Ethics, Bribery,
Corruption and Money Laundering
18/10/2022 1
Professionalism, Ethics, Bribery,
Corruption and Money Laundering
• Explore Professionalism and ethics
– APM Code
– Engineering Codes
• Describe UK legislation
– Bribery
– Corruption
– Money Laundering

• Project Managers Professionalism, Ethics, Bribery, Corruption
and Money Laundering
• Corruption by country – Transparency International
18/10/2022 2
Professionalism and Ethics
• What is Professionalism?
• What is Ethics?
• Why do professional institutions have codes
of ethics?
APM’s ethical values
integrity, respect and empathy.
18/10/2022 3
What makes a PM a professional
• Is it training? Is it payment? Is it intangible?

• Is it easier to say what’s unprofessional
• Is it that they follow a code of ethics?
18/10/2022 4
What is Professionalism?
– 1. the conduct, aims, or qualities that characterize
or mark a profession or a professional person
– 2 : the following of a profession for gain or
livelihood
18/10/2022 5
Ethics in project management
• All professional bodies like APM have a code of conduct to
set standards
to guide members and raise the level of trust and confidence of
the public
in the profession.
• APM requires high ethical standards, just as it requires high

professional
standards. Ethics, and ethical behaviour, is a key part of
professionalism
and therefore vital to APM’s chartered journey.
• High standards of ethical behaviour in the profession benefits
everyone – the
status of the profession itself is enhanced;
• the quality of the delivery of projects is raised;
• society benefits because project managers have completed
their work to a high
standard, not just on schedule or within budget, but with
ethical responsibility.
• APM’s ethical values
– integrity, respect and empathy.
18/10/2022 6
1 2
3 4

5 6
18/10/2022
2
What is Ethics?
– Ethics is :
• Its really difficult to say
• SIMPLY: An institution’s moral code
• A system of accepted beliefs that control behaviour
• The study of what is morally right or not
18/10/2022 7
APM examples
• Examples

• Would you:
– give an honest quote, even if that means losing out to the
competition
(who may not be so honest)?
– stand up to a client if you felt they were asking you to do
something
unethical?
– consider how a project will impact on the wider community.
– https://www.apm.org.uk/resources/find-a-
resource/ethics-in-project-management/
18/10/2022 8
Why do professional institutions have
codes of ethics?
• Why do professional institutions have codes
of ethics?
– SIMPLY PUT if you employ a chartered PM then

you know she has to follow the institutions Code
of Ethics/Code of conduct/Ethical values
APM’s ethical values
act with honesty, integrity and probity.
may-18-code-of-professional-conduct.pdf (apm.org.uk)
18/10/2022 9
Code of Ethics/Code of Conduct
• Conduct unbefitting/unbecoming
• Integrity
• Honesty
• Ethics is a cornerstone of a profession and separate
professions/chartered orgs from non
professions/chartered
• USA PE
• Look at APM, RICS, IMechE, ICE

18/10/2022 10
PMs and corruption
• Why are PMs at the forefront of bribery and
corruption?
– Public Works
– Many Contracts
– Pre Contract
• [Bidding]
– Post Contract
• Receiving tenders
• Managing Contracts particularly interim payments
• Operating Facilities
18/10/2022 11
Why consider corruption, bribery and
professional ethics at all?

• The United Nations estimated amount of money
laundered globally in one year is 2 - 5% of global GDP,
or $800 billion - $2 trillion in current US dollars.
https://www.unodc.org/unodc/en/money-
laundering/globalization.html
• Engineering Projects and contracts are often identified
as vehicles for corruption; be it bribery or money
laundering. In 2017 British engineering giant Rolls-
Royce apologised will pay £671m to settle corruption
cases with UK and US authorities.
https://www.bbc.co.uk/news/business-38644114
18/10/2022 12
7 8
9 10
11 12
https://www.apm.org.uk/resources/find-a-resource/ethics-in-
project-management/
https://www.apm.org.uk/v2/media/4d0pswwb/may-18-code-of-
professional-conduct.pdf

https://www.unodc.org/unodc/en/money-
laundering/globalization.html
https://www.bbc.co.uk/news/business-38644114
18/10/2022
3
Bribery & corruption in the UK
• The main legislation in the UK governing
bribery & corruption is Bribery Act, 2010
which came into force on 1 July 2011. ... The
act defines criminal offence of bribing another
person, public official, being bribed & liability
of commercial organisations to prevent
offence of bribery
18/10/2022 13
Bribery Act 2010
Offences of bribing another person
• A person (“P”) is guilty of an offence if either of the

following cases
applies.
• (2)Case 1 is where—
– (a)P offers, promises or gives a financial or other advantage
to another
person, and
– (b)P intends the advantage—
• (i)to induce a person to perform improperly a relevant
function or activity, or
• (ii)to reward a person for the improper performance of such a
function or
activity.
18/10/2022 14
Bribery Act 2010
Offences of bribing another person
• A person (“P”) is guilty of an offence if either of
the following cases applies.

• Case 2 is where—
– (a)P offers, promises or gives a financial or other
advantage to another person, and
– (b)P knows or believes that the acceptance of the
advantage would itself constitute the improper
performance of a relevant function or activity.
18/10/2022 15
Bribery Act 2010
• Bribery of foreign public officials
– A person (“P”) who bribes a foreign public official (“F”) is
guilty of an offence if P's intention is to influence F in F's
capacity as a foreign public official.
• Failure of commercial organisations to prevent bribery
– relevant commercial organisation (“C”) is guilty of an
offence under this section if a person (“A”) associated with
C bribes another person intending—

– (a)to obtain or retain business for C, or
– (b)to obtain or retain an advantage in the conduct of
business for C.
18/10/2022 16
Bribery prosecutions and
consequences
• Rolls-Royce apologised in court after settling
bribery case
• Settlement of £671m means engineering giant
will avoid being prosecuted by anti-corruption
investigators in UK, US or Brazil [India,
Thailand et al]
18/10/2022 17
Bribes or baksheesh
• At Graduation ceremony:
– A student gives Peter Fenn a tea set and some tea [his region

produces the
best tea in China]
• Bribe or not?
– A student gives Peter Fenn a £50 pound note to buy some tea
• Bribe or not?
– A student gives Peter Fenn a first class Air ticket to his
country to come and
help his government implement the famous Peter Fenn
Mediation Scheme.
– Bribe or not?
» Does it matter if all these are before graduation, or 5 years
later?
• A supplier invites a PM to box at Twickenham, gives a bottle
of whiskey
for Xmas, takes to Paris for the weekend
– Bribe or not?

18/10/2022 18
13 14
15 16
17 18
18/10/2022
4
Corruption
• the abuse of entrusted power for private gain,
Transparency International definition of
corruption
18/10/2022 19
Corruption by Country
• https://www.transparency.org/cpi2018

• Most Corrupt?
• Least Corrupt?
18/10/2022 20
Corruption by Country
18/10/2022 21
Money laundering
• Money laundering is the process of making
large amounts of money generated by a
criminal activity, appear to have come from a
legitimate source.
• The money from the criminal activity is
considered dirty, and the process "launders" it
to make it look clean
18/10/2022 22
Money Laundering is a crime

• The Money Laundering, Terrorist Financing
and Transfer of Funds (Information on the
Payer) Regulations 2017
• Proceeds of Crime 2002
18/10/2022 23
Unexplained Wealth Orders UWO
• UK particularly London becoming a safe haven for corrupt
individuals and their assets.
• UWOs – an investigative tool to help law enforcement act
on corrupt assets.
– Transparency International has been pushing for since 2014.
• UWO requires the respondent to explain how he lawfully
acquired his assets. If he fails to respond or gives an
inadequate response then this extra information can be
used in a separate civil recovery process (an existing
measure under the Proceeds of Crime Act) if law
enforcement has gathered sufficient evidence.

18/10/2022 24
19 20
21 22
23 24
https://www.transparency.org/cpi2018
18/10/2022
5
UWO example
• Person [Politician]has misappropriated millions of
pounds from the health budget into his own
pocket. To hide the proceeds of this crime, he
decides to buy a multi-million pound property in
London.
• The UWO requires the respondent to explain how
he lawfully acquired his assets. If he fails to

respond or gives an inadequate response then
this extra information can be used in a separate
civil recovery process
18/10/2022 25
Same question
• Why do PMs need to be concerned with bribery
and corruption, Why are PMs at the forefront of
money laundering?
– Public Works and Capital Projects
– Many Contracts
– Pre Contract
• [Bidding]
– Post Contract
• Receiving tenders
• Managing Contracts
• Operating Facilities
18/10/2022 26
Why is England so strict on Ethics, Money

Laundering, Bribery and corruption etc?
• Reputation takes many years to build seconds
to destroy
• UK plc makes a great deal of money from
reputation
18/10/2022 27
Discussion threads
1. Week 4
1. What factors might affect collaboration/cooperation on
Projects
2. If Conflicts are inevitable explain the dabbahwala. Maximum
100 words
2. Week 5
3. Your client wants advice, the client says a lot of cash via
Crypto currency lies within
the client’s firm and seeks to use it for upfront payments on
projects i.e. before the
work is done. The client refuses to tell you any more and says

“that’s our business,
just arrange it”. Do you:
1.
i. Refuse to go any further without an explanation.
ii. Make the arrangements its not your business
4. Your firm is PM on a project for cleaning land contaminated
by toxic waste, your
engineers are concerned that one of the sub contractors intend
to use a process
that they maintain will only work in the short term and may
cause more
contamination later. And you’ll be gone. Do you
1. Go with the new process
2. Arrange a set of alternatives and their prices, and report your
concerns
18/10/2022 28
25 26
27 28

1
Conflict Management and Dispute Resolution
Elective Module 66061
MSc Management of Projects

Peter Fenn
MACE
Manchester
M13 9PL
Tel 01613064233
Email: [email protected]
mailto:[email protected]
2
Conflict Management and Dispute Resolution

Table Of Contents And Workbook Outline
How To Use This Workbook
1. Introduction
2. Conflict Theory
3. Conflict Management and Dispute Avoidance
4. Bribery and Corruption
5. Negotiation
6. Mediation Principles
7. ADR Processes and Game Theory
8. Cooperation and collaboration

9. Dispute Avoidance
10. Comparison of Dispute Resolution
11. International Law and International Disputes
12. Conclusion
3
How to Use this Workbook
This workbook has been specially designed and written for the
elective module in

Conflict Management and Dispute Resolution on the MSc in
Management of Projects.
It will help you to plan your study and to work systematically
through the course. You
should use this workbook as the basis of your studies. The
workbook is just part of the
material which is provided at the Blackboard Virtual Learning
Environment [VLE].
There are 5 main teaching documents:
1. This Workbook [ available at any time as an ebook and on
Blackboard]
2. The Learning Modules [available ONLY at Blackboard]
3. I give a synchronous lecture for each learning module and the
Lecture Slides
are available at any time on Blackboard

4. All the lectures are copied and are available as asynchronous
learning
5. As preparation for each topic I present a brief 10-15 minute
video detailing the
content of the coming weeks learning module and full lecture.
In addition I expect that you will do some reading. I try to
give more reading, web
material, videos etc in each week’s folder on Bb.
Content
The workbook is divided into sections that reflect the syllabus.
Each section begins with
an introduction, which briefly explains the topic to be studied
and may suggest areas to

be focused upon. This is followed by a list of objectives that
should be achieved after
studying the section.
The substantive part of the text must be read very carefully, and
you must ensure that
you understand the concepts before moving on to the next
section. It is important that
you are sure that you have achieved the objectives identified at
the beginning of the
section.
Questions
In this workbook there are boxed questions in the text; and
these are repeated in the
web based learning modules. These are designed to make you

stop and think about the
issues, and sometimes the rules of law, you are studying. You
should answer these
questions before proceeding. However, not every question will
have a clear answer.
This is the nature of the subject.
After the substantive part of each section, you will find some
short revision type
questions. These basic questions are a good way of checking the
extent of your
understanding of the main concepts. In spite of the fact that
they are basic, you are
strongly recommended to do these questions before moving on
to the next section. The
questions can be answered by reference to the text and some
self study. If you are unable

to answer the questions you should read the section again to
identify areas that were
unclear to you at the first reading.
4
Following the revision questions, there will normally be an
essay-style question. This
is the type of question that you can expect as part of your
assessment. You should
attempt these questions to see if you can identify the issues
raised.
Writing an answer

It is important to understand how to write an answer to a
question. When answering an
essay style question, you should try to structure your answer:
start; middle and end is
always a good structure. Start your answer with a short
introductory paragraph
outlining your treatment of the topic; set the stage for the text
which follows. In the
middle deal with the substantive issues; what are they? At the
end make sure you have
answered the question; and reach conclusions based on your text
in the middle.
Questions have a command work e.g. discuss – this requires at
least two viewpoints or
opposing theories; make sure you deal with the command word..

Having determined the issues in a problem (and remember there
may be more than one
issue in a question) you may have to state the law that applies
to the particular issue. In
Mediation this is less likely than other areas e.g. arbitration
where a statute applies. If
the law is from a statute, you will need to state which Act and
which section applies.
So, for example, s 11 of the Unfair Contract Terms Act 1977. It
is not necessary to
memorise s 11, but you should be able to state the effect of the
section. Having done so
you must then show how it relates to the problem you are
dealing with and try to come
to a conclusion on that issue. Sometimes it will not be possible
to arrive at a firm
decision, normally because the question does not give you all

the facts. It is permissible
to say that a particular conclusion is more or less likely in the
circumstances. It is also
permissible to give one or two possibilities, but you must be
careful not to lose sight of
the rest of the question.
The relevant law may also be found in the decision of a case;
again less likely in
Mediation but needs to carefully monitored. You will need to
state the name of the case
and the principle it provides. When stating the name it is not
necessary to put down the
entire citation just the name of the case is sufficient: for
example, Donoghue v
Stevenson. Should you be unable to remember the entire case
name, simply 'the

Donoghue Case' will suffice. When you cannot remember either
part of the name, but
remember some salient facts, which will identify the case, you
may state those facts
very briefly. For example, in relation to the above, you may say,
'in the case of the snail
in the ginger beer bottle'. Do not panic if you do not remember
the case name, it is more
important to state the principle involved. Try to remember the
most important cases in
each topic, rather than all the case names in the list. Many of
the cases merely illustrate
a point, rather than create new law. These illustrative cases will
help you to understand
how the courts apply already established principles of law.

Having identified the issues and stated the law, you must apply
the law to the particular
set of facts that you have been given. This process must be
repeated for all the issues
the question raises before you can finally come to a conclusion.
Revision and assessment technique
The following are just a few suggestions on matters you might
like to have in mind
when revising for and writing the assessment.
5
You should plan your revision in good time. Apportion enough
time to each topic that

you are studying. It is a good idea to test your self after revising
each topic. This should
include writing an assessment style answer to time, as explained
below.
You should be careful to note mark allocations on the questions.
It is pointless to spend
an excessive amount of time in producing a lengthy answer to
part of a question that
only merits a few marks, whilst giving a short answer to the part
meriting higher marks.
Deal with the command in a question and answer the question;
that is the question
posed, not the question you wish had been posed!
I hope that you will find this course stimulating and

challenging. It is hoped that when
you have completed the course you will have a sound
appreciation of the basic
principles of Conflict Management and Dispute Resolution
Good luck with your studies!
6
Introduction
Chapter 1
Some issues

Why teach a course on conflict and disputes for project
managers? I am neither a
lawyer nor a project manager, but I have taught such courses to
Engineers and a
postgraduate course to Project Managers for more than 10 years.
The Engineers course
is at MEng level but might be described as an undergraduate
level course; the Project
Management course is post-graduate MSc. Both professionals
need to know about
conflict and dispute issues but the study of law is a peripheral
issue. I have been
involved in commercial disputes for longer, these nearly always
involve lawyers and
often Project Managers or Engineers. Recently the Project
Manager’s course has
become truly international in one year, 2018, more than 250

students from almost 30
countries took part. It was clear to me that Project Managers
[PMs from now] had to
understand some law. I wonder if somewhere else in one of the
10500 universes someone
else is writing a book called Project Management for lawyers
using similar logic.
I set a piece of coursework for many years. In my feedback.: “
Students reported time
spent by Project Manager in dealing with conflict and dispute
ranging between 10 and
70 to 80!% of their total time?” This is the danger or the
problem in this field its
dominated by anecdote and unsupported data. One academic
paper can be found with
a simple search.

MANAGERS SPEND 42% OF THEIR TIME ON REACHING
AGREEMENT WITH
OTHERS WHEN CONFLICT OCCURS. Conflict Resolution in
Project
Management
Amy Ohlendorf
https://www.umsl.edu/~sauterv/analysis/488_f01_papers/Ohlend
orf.htm
The citation to support this Ford J. Workplace conflict: facts
and figures.
URL:http://mediate.com/workplace/ford1.cfm returns
The Page cannot be found.
The page you are looking for might have been removed, had its
name changed, or is
temporarily unavailable. Also, please check for a typo in your
address. (error 404).

There are many reasons why I chose to teach a course for PMs ;
not least because there
are many books out there but few for PMs. So to further
confuse things I’ve called this
one conflict management and dispute resolution for PMs,
because strictly its not Law.
Like many things around legal issues this book will be plagued
by definitions. Is it:
Law; the law; or laws? These debates are great fun, but not for
us here. You will find
many things that are different in the study of legal issues. For
example Project
Management tends to be taught on the Instructivist approach
where an instructor
delivers the ‘right’ answer. While law [call it what you will]
adopts a Socratic style;

here scenarios are developed and the leader argues with a
position perhaps by
developing Reductio ad absurdum. There have been strong
pressures to purge courts
of Latin so that is the last bit in this book and you can look it
up, Socratic too.
What do the law and Project Management think of each other?
Perhaps you have a
view on the law. A recent case helps with what the law thinks
of Project Management
and leads to the some more introductory issue. In The Trustees
of Ampleforth Abbey
Trust v Turner & Townsend Project Management Limited 144
Con LR 115, [2012]
TCLR 8, [2012] EWHC 2137 (TCC) it was noted at para 76:
“it may be impossible in any event, to define with precision the
expression "project

manager"”
https://www.umsl.edu/~sauterv/analysis/488_f01_papers/Ohlend
orf.htm
http://mediate.com/workplace/ford1.cfm
7
The first issue is Legal Citation and reporting, this is a
bewildering field. Many, many
cases weave their way through the court system; historically
only certain people were
allowed to report cases because this then formed the case law
system which is a feature
of the Common Law system in England and Wales (see later).
Information Technology
IT has changed everything and now the majesty of the case law
system is available with

the click of a mouse. Try and find the The Trustees of
Ampleforth Abbey Trust v
Turner & Townsend Project Management Limited case and read
the judgement, does
the judge say that Project Management is simply common
sense?
The second issue is that the Ampleforth Case might be seen as
the latest in a line of
cases dealing with the role of PMs, other relevant cases include:
Royal Brompton
Hospital NHS Trust v Hammond (No. 9) [2002] EWHC 2037
(TCC) and Pozzollanic
Lytag Ltd v Bryan Hobson Associates [1998] EWHC 285
(TCC), [2000] B.L.R. 233.
Do PMs need to know the cases? There are so many? I suggest
that PMs need to be

aware of what a line of cases means but of course they don’t
need to know the cases.
That’s what lawyers do and leads to the next point.
Your search for the Ampleforth case will undoubtedly have
thrown up many
commentaries on the case; free to access on the internet.
Written mostly by lawyers,
but some by specialist Project Managers with an interest in the
law; some by those
irritating swots who have the ability to be dual qualified. Why
write things and then
give the words away for free? Mine are collected together and
sold as a ridiculously
expensive book. The answer to my question raises so many
interesting issues and I do
not, for a moment, cast any doubt or aspersions on the people
who write things then

give them away for free. If you are interested do a google
search on Web2.0 and watch
hours of your life float away, gone for ever.
This book takes the model of the independent Project Manager
appointed, and paid for,
by the client. This is not the only model, if you are a project
manager within an
organisation; the issues raised translate to your model. Either
way stand back and
reflect; read the Ampleforth case and see the issues raised
there, translate them to your
particular model.
It is impossible to write a disputes unit without reference to
some law, both statute and
case law, but this is not a legal reference book. If you seek a
reference look elsewhere,

there are plenty.
Finally I hope I have answered my own question: Why write a
book about disputes and
project management? By posing more questions, just like
Socrates.
8
Some issues of law
The United Kingdom of Great Britain and Northern Ireland
(UK) consists of four
countries: England, Wales, Scotland and Northern Ireland. Some
law applies

throughout the whole of the UK; some applies in only one, two
or three countries. This
book deals with law in England and Wales; remember things are
different elsewhere,
in Scotland and Northern Ireland. Whatever you do don’t say
British Law; particularly
to a Welshman or a Scot or Irishman.
Sources of Law
Where does law come from? A nice easy one; but of course like
everything else it gets
difficult, the two principal sources of English Law are
legislation and common law.
Two important additional sources of law are: European Union
law and the European
Convention on Human Rights. I first started thinking about and
writing this book before

‘Brexit’ and a major influence on the vote was that we, whoever
we are, should not be
bound by European courts. I am finishing writing the book as
exit looms, who knows
what will happen to our laws, whoever our refers to.
Legislation is by statute. Common
law (sometimes case law or precedent) is developed by judges
through decisions in
courts when individual cases are decided, as opposed to the
statutes made or adopted
through legislative process
There is no single series of documents that contains the whole
of the law of England
and Wales. This is often surprising to non lawyers and lawyers
from other jurisdictions
The legal Profession[s]

Historically the legal profession in England had two branches;
barristers and solicitors,
each with its own controlling body. The two branches did
different things, and most
notably barristers were the clients voice in higher court; they
alone had rights of
audience i.e. they could be heard. Those restrictions are mostly
gone and more players
have now been added to the mix: e.g. paralegals and legal
executives. The term lawyer
will be used from now, and lawyers will advise which specialist
to consult. In the same
way that you see a doctor who then refers you for specialist
advice to a specialist doctor;
you see a lawyer who then advises which specialist lawyer
might be consulted. That
specialist lawyer might be a paralegal; a legal executive; a non

lawyer; a solicitor; a
barrister or a specialist senior barrister who might be a Queens
Counsel. The first
lawyer you consult might be specialist; might be a paralegal; a
legal executive; a non
lawyer; a solicitor; a barrister or a specialist senior barrister
who might be a Queens
Counsel. You get the idea.
The legal system in England and Wales
The United Kingdom has three separate legal systems; one each
for England and Wales,
Scotland and Northern Ireland. This reflects its historical
origins and the fact that both
Scotland and Ireland, and later Northern Ireland, retained their
own legal systems and
traditions under Acts of Union 1707 and 1800. This section

deals with the judiciary of
England and Wales.
The justice system is one of the three branches of the state. The
other two branches are
the executive, or the government, and the legislature, which in
England and Wales is
the two Houses of Parliament. In other [mostly] democracies
these three branches of
the state are separate from each other by a principle known as
separation of powers.
Roles and functions are defined within written constitutions,
preventing the
concentration of power in any one branch and enabling each
branch to serve as a check
on the other two branches. The United Kingdom does not have
a constitution that is

contained in a written constitutional instrument; and
periodically attempts are made to
deal with this. These are fascinating points of Law and politics
but hardly the detail of
9
a book on legal issues for PMs. If you want to read more, and
the structure of the court
system try The Courts and Tribunals Judiciary Website at
https://www.judiciary.gov.uk/.
Stratification
Justinian was a Roman emperor from 527 to 565, he was
famous for many things, his
role in formalizing or codifying the law of Rome came through
his legal writing. The

Institutes of Justinian was Justinian’s codification and is useful
here because it
demonstrates the law’s predilection for stratification.
Law is stratified or divided in many way. Substantive or
procedure. Criminal or civil.
Common law or statute. Public or Private. All attempts to
stratify are difficult at the
boundaries and the layers or divides often overlap.
Procedural law comprises the set of rules that govern the
proceedings of the tribunal
[court or arbitration]. The tribunal needs to conform to the
standards setup by
procedural law during the proceedings. These rules ensure fair
practice and consistency
in natural justice and rule of law in England or "due process" in
the USA.

Substantive law deals with the legal relationship between
people or the people and the
state. Therefore, substantive law defines the rights and duties of
the people. Procedural
law lays down the rules by which they are enforced. Of course
the differences between
the two need to be studied in greater detail if you are interested
for better understanding.
More than that will not be said here.
Criminal law seeks to punish the wrongdoer. Civil law seeks
the redress of wrongs
by compelling compensation or restitution: the wrongdoer is not
punished.
Private law applies to relationships between individuals in a
legal system. e.g. contracts
.

Public law applies to the relationship between an individual and
the government. e.g.
criminal law
Common Law or statute ? As English law first developed there
was little legislation
or statute. Judges made law by their decisions on cases, these
laws were followed or
bound the whole country by the system of precedent; the
common law of England
developed. As society developed and parliamentary democracy
was born law made by
the monarch was replaced by laws made by legislation of
parliament. The two co-exist
to produce the law of the land but a Common law system
became a way of describing
jurisdictions which followed the English system. As opposed to

a Common Law
system, Civil Law system is used to describe jurisdictions
which follow a Roman or
codified system [i.e. the law is written down].
This book is mostly about Private Law not Public , it is mostly
about Civil not Criminal
[though much of Health and Safety Law is Criminal law], it is
mostly about substantive
law not procedural law. Although some procedural law must be
considered [Arbitration
and Adjudication]. This book is mostly about the common law
not civil law but again
some Statute must be considered [again Arbitration and
Adjudication are examples.
So now its confusing: civil law as opposed to criminal law but
civil law can also mean

a non common or codified system, and back to Justinian. But
before that what are the
legal systems around the world? Again its simple but its not.
The systems are:
Common Law [e.g. England and Wales]
Civil Law [e.g. most but not all mainland Europe]
Bijuridical Law [e.g. South Africa]
Fidqh or Islamic Law [e.g. Saudi Arabia]
Fig x shows a world map of legal systems
https://www.judiciary.gov.uk/
10

This work has been released into the public domain by its
author at the English
Wikipedia project. This applies worldwide. Source
http://upload.wikimedia.org/wikipedia/commons/2/21/LegalSyst
emsOfTheWorldMap
.png
Fig x A world map of legal systems
Red Common Law; blue Civil Law; brown Bijuridical Law;
yellow Fidqh or Islamic
Law
. Remember that by their very nature the explanations offered
here are simplistic you
need to read more than the material here. An example from
elsewhere: introductory

science explains atomic structure as a nucleus circled by
electrons; intermediary science
includes protons and neutrons; advanced science talks of many,
many sub atomic and
sub nuclear particles. An introduction to contract and tort
cannot go direct to the
advanced explanation.
PMs come from and work in many nations and it would be
impossible to consider all
the aspects of every project in each country. However many of
the issues facing the
parties to projects are generic; and by considering certain of
these issues in differing
countries you will be able to analyse the effect of risk and
contract conditions; no matter
what the project or the contract or how the risk is allocated.

Finally projects operate within legal frameworks and
jurisdictions; this book describes
the legal frameworks under generic headings and also provides
some analysis of the
jurisdiction in England and Wales. Many countries share
similarities with law of
England and Wales, but many do not. It may be that the country
in which you are
operating has a different legal system or that a particular area of
the law is different;
you should always consider the effect of jurisdiction.
Projects need not be bound by the law of the country in which
they are physically
situated or the law of the countries from which the parties are
drawn. Imagine the
common situation:

An infrastructure project in an African country:
• funded by the World Bank;
• designed by engineers from Scotland (United Kingdom);
• project management by an organisation from the USA;
• procurement arranged by quantity surveyors from Australia;
• construction management by an organisation from England;
• sub-contractors from Holland, Malaysia and the African
country;
• subject to the law of England;
emsOfTheWorldMap.png
emsOfTheWorldMap.png
11

• disputes to be dealt with a variety of procedures culminating
in
International Arbitration in Switzerland.
It would be difficult, although perhaps not impossible, to
include in any book detail of
all these arrangements and all the jurisdictional issues; and it is
not attempted here.
International law
This is a confusing term and for our purposes we can assume
that there is no such thing.
Public International Law governs the relationship between
states and international
entities. PMs will seldom be involved in such matters. Private
international law, which
addresses the questions of (1) which jurisdiction may hear a
case, and (2) the law

concerning which jurisdiction applies to the issues in the case.
English Law and
lawyers term this conflict of laws. The conflict is which court
has jurisdiction? And
which law applies. Parties can choose the law and the
jurisdiction which applies to
their project, usually via their contract. The phrase:
The Agreement and these Conditions shall be governed by and
construed in
accordance with the law of England and Wales, the parties agree
to submit to
the exclusive jurisdiction of the Courts of England and Wales in
respect of any
dispute which arises out of or under this Agreement.
Is commonly seen in contracts. The parties actively seek
English Law and the English

Courts. Why parties would do that is a complex issue, and will
be returned to later [in
Chapter 11]. You might consider it: Why would the parties to
our imaginary project
seek English Law and English Courts?
Remember our infrastructure project in an African country:
• funded by the World Bank;
• designed by engineers from Scotland (United Kingdom);
• project management by an organisation from the USA;
• procurement arranged by quantity surveyors from Australia;
• construction management by an organisation from England;
• sub-contractors from Holland, Malaysia and the African
country;
Why would it be subject to the law of England; with any

disputes to be
dealt with a variety of procedures culminating in International
Arbitration in London? The law in England and Wales, the legal
system
in England and Wales and English [and Welsh] Lawyers is a
great
contributor to UK plc. In 2016 The Law Society said:
Net exports of legal services have also grown in value by an
average of 5.6 per
cent per annum over the last 10 years, to £3.6 billion in 2014.
The legal services
sector is a net exporter, helping to offset the UK's overall
balance of payments
deficit. English and Welsh law is the choice of law
internationally and England
and Wales is the jurisdiction of choice.

In some quarters there is a tendency to blame lawyers for lots of
things. A line from
William Shakespeare's Henry VI, Part 2, Act IV, Scene 2. Says
"The first thing we do,
let's kill all the lawyers”. I am not in that camp. Some lawyers
may read this book to
point out my, many, puerile errors. Go easy on me, I am your
fan.
12
Eats, shoots and leaves; can a word modify a sentence and what
is the cost of a
comma
There are many books which point to the havoc wreaked by poor

punctuation. Try the
sentence ending eats shoots and leaves as opposed to eats,
shoots and leaves. Google
it and see.
How about considering if a word can modify an entire sentence?
In Flores-Figueroa v.
United States. The U.S. Supreme Court decided that the word
“knowingly” modifies
not only the verb, but also the direct object following the verb.
Ultimately the poor use of syntax, grammar and or punctuation
might cost you dear. In
Canada a misplaced comma reportedly cost Rogers
Communication Inc $2.13M.
There is a point in this rant for attention to grammar and syntax.
PMs communicate via
the written word. The law and lawyers often have to decide a

meaning when the written
word is unclear. The written word is an important tool for PMs;
and writing is an under-
rated craft skill.
Read your work and read it again and read it again. Arbitrators
are advised to finish an
award 3 days (at least) before it is due and put it in a drawer for
a day before re-reading
one last time. Try it. Ask an independent third party to read
for sense. Even if they
know nothing about the subject matter they can advise if it
makes sense. The might be
anyone; might be a colleague: mum; dad; son; daughter; wife;
husband; boy friend or
girl friend. But think about the law or the contract. An
arbitrator can’t ask anyone, or

can they? If you want to see the debate about this you will have
to consult a specialist
text or a specialist lawyer. What about something you produce
for a client or at work,
can you show that to anyone? Look in your contract, see what
it says. You will have
to consult a specialist text or a specialist lawyer and this might
encompass Employment
about which this unit says nothing.
13
What is law

The law is bound up with many things: concepts of justice;
ethics; fairness and rules.
Common definitions include reference to rules. The system of
rules which a particular
country or community recognizes as regulating the actions of its
members and which it
may enforce by the imposition of penalties. The law might say
shooting some birds is
against the law and might impose a penalty of money or
imprisonment. Few laws say
You must shoot certain birds. This is often talked about in
terms of sins of omission
and sins of commission.
Great thinkers; philosophers; jurists and lawmakers have written
about these things.

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Game Theory for Project Disputes

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