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Adversarial vs. Cooperative Contracting in Construction. What's the Difference?

A contract is a necessary part of any business deal. It provides an understanding of what is required of each party, what each party expects of the other and the legal avenues available to each party.

Unfortunately contractual disputes do arise, despite efforts to avoid them. In dealing with contractual disputes, the form of the contract will determine how the dispute will be managed.

There are two main types of contracts, the adversarial contract, a legacy of the 1980’s and 1990’s, and the more recent approach to contracting, the cooperative contract.

Whilst the benefits of cooperative contracts are widely acknowledged, the shift from the traditional adversarial contract form has been slow, mainly because adversarial contracts are supported by case law references, and are enshrined in custom and practice or approach to doing business particularly in construction. Essentially it is easier to maintain the status quo rather than push for a change, even though that change would be beneficial for all parties involved.

The key point of difference between the two approaches is that adversarial contracts expend time and energy in blame and avoid dealing directly with the issue, whereas the cooperative contract does not focus on blame but active dispute resolution and is a requirement of both parties.

In a cooperative contract, the parties involved in executing the contract or put simply delivering the project meet at the start of the project and work to understand each other’s project delivery expectations. The parties discuss the issues that might impact on the project, develop actions to deal with those issues and meet regularly over the life of the contract to jointly work to resolve emerging issues before they become problems and also to acknowledge achievements.  

A cooperative contract encourages proactive conflict resolution and represents a common sense approach when compared to the traditional form of contract that allows the parties to avoid the issue, breeding further conflict.  

For further illustration, please see the attached diagram that highlights the different paths conflict resolution take under the two different contracting styles.

Please Contact Us to see how we can help you with developing a cooperative approach to contracting. 

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