The recently published Conciliation of Construction Industry Disputes is a very welcome addition to the relatively small number of books about the Irish construction industry, particularly as there are no other publications about conciliation, writes Ciaran Fahy.

The author is a very experienced civil engineer and dispute resolver. Graduating from Trinity College Dublin in 1962, with a PhD added in 1965, he initially worked for a well-known contractor which specialised in design and build contracts (both building and civil engineering). This provided wide and varied experience. He became a director of the company in 1978.  

At the forefront of conciliation

In 1984 he set up his own consultancy practice, which provided engineering advice and advice on contractual issues. He was involved in the evolution of alternative dispute resolution (ADR) methods and conducted his first conciliation in 1988, which put him at the forefront of conciliation as a process.     

In 1984, he also became a part-time lecturer at Trinity College Dublin's Department of Civil Engineering, lecturing undergraduates and postgraduate diploma course students. 

In 1993 Professor Simon Perry asked him to design and set up a one-year postgraduate diploma course in construction law, a task in which he was assisted by Max Abrahamson and Professor William Binchy. The course 'Construction Law and Contract Administration' was launched in 1996 and, until 2004, Bond was the course director and gave many of its lectures. This very successful course is still running today.   

Since 1988 Bond has resolved many disputes, acting primarily as conciliator and also as an arbitrator and mediator. In his experience, conciliation proved to be by far the best method leading to the resolution of virtually all the disputes referred to him, mainly by agreement between the parties.

The book itself is a comprehensive work running to about 300 pages and with 14 chapters which are well structured and written. It starts with a very comprehensive overview of the how the construction industry operates and has evolved in Ireland and the UK and how disputes are inevitable, though many could be avoided.  

Dispute boards and dispute avoidance

Resolution involving independent third parties is described, distinguishing between determinative methods (litigation, arbitration and adjudication) which impose a resolution, and consensual methods (mediation and conciliation) which do not. Dispute boards and dispute avoidance are also covered.   

The book describes how, following the publication by Engineers Ireland of its Conciliation Procedure in 1995, mandatory conciliation was introduced into all Irish construction contracts and traces how it has evolved with the introduction of the public works contracts in 2007 and how, in 2016, the Royal Institute of the Architects of Ireland (RIAI) decided to replace conciliation with a version of facilitative mediation, which it calls 'MedRec Conciliation'..  

Conciliation was first devised and introduced into its contracts by the Institution of Civil Engineers in London culminating in the publication in 1994 of a Conciliation Procedure (closely resembled by the IEI 1995 Procedure). Then, in the UK, the Housing Grants, Construction and Regeneration Act of 1996 created a statutory right to refer disputes to adjudication, which became the standard method in that country and where conciliation was soon forgotten. Thus, Ireland is now the only country in which this version of conciliation is still in use. 

Conciliation is a hybrid process where the primary purpose is to achieve an agreed settlement (which is the sole purpose of mediation) but if agreement is unachievable, there is a second stage where the conciliator must issue a recommendation for the resolution of the dispute. The recommendation becomes binding unless one of the parties actively rejects it within a defined limited time (usually a few weeks).

The book describes exactly how conciliation works and its various stages. It is, in effect, a comprehensive textbook of how conciliations should be conducted and includes summaries of the author’s findings from two surveys he carried out into the experience of conciliators and users of conciliation.

This book should be essential reading for anybody acting as a conciliator or standing conciliator or, indeed, who has aspirations to act in that capacity. It will also be invaluable to anybody involved in conciliation as a party, or representing a party; it will also be of great value to anybody working in the construction industry.

Because conciliation has been so successful in Ireland (which is the only country using conciliation), the book should be of great interest in the UK and in other countries which do not use conciliation or even know about it. It is therefore worthy of international interest.

'Conciliation of Construction Industry Disputes' is written by Brian Bond and published by Routledge (Taylor & Francis Group) and can be purchased online from the publisher at £120.

Author: Ciaran Fahy, arbitrator, conciliator, mediator.