The question of whether contract disputes are predictable is often considered, especially in construction where there is much focus on managing the risk associated with projects.
While it may be possible to identify certain types of contracts or work-types where risk may be higher, in my experience contract disputes aren’t predictable.
Contract law provides a sound basis for regulating agreements between parties, but it is complex and there are countless variables that need to be considered when disputes occur, such as evidence from expert and lay witnesses, which can be contradictory, as well as original documents.
A lack of clarity over contract terms and meaning can cause uncertainty and confusion and when you throw into the mix the expectations of clients and the conduct of the other side, you are left with a number of imponderables.
A further factor that cannot be ignored is the cost of legal action, especially when you consider that fast track cases for claims valued between £10,000 and £25,000 are usually disproportionate in terms of legal costs, increasing the precariousness of the situation for clients.
I am personally a huge advocate of alternative dispute resolution (ADR) as the most sensible way forward in many cases.
ADR enables parties to settle their dispute outside the courtroom, minimising delays, reducing costs and stress levels.
Options include negotiation, which is an informal approach to resolving issues, or mediation where a neutral mediator helps parties to work towards a settlement.
In conclusion I would say that more often than not disputes are not predictable, but steps can be taken to minimise the chances of them occurring and, if they do crop up, to identify practical, proportionate solutions.
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