Author Title Critical analysis (Gap in research)

Love et al Dispute causation: Issues addressed

2010 identification of  Main aim of this paper is to
pathogenic influences identify the underlying
in construction pathogens that clients and
contractors preveive to
contribute to disputes in
construction projects (okay but
construction is made up of many
stakeholders what about them?)
 Disputes continue to arise
although efforts have been
made by professional
bodies(look at construction
dispute review boards)
 Mentions that the complexity of
construction projects is
increasing and the economic
environment is turbulent (Which
is true for Malawi fuel shortages)
 Many of the factors that cause
disputes can be resolved by
better management
 Cost of the dispute was also
determined
-note that the causes of disputes
between contractor and client
are not similar but the costs to
each are similar

Objectives
 there is a need to obtain an
ameliorated understanding of
the underlying conditions that
contribute to disputes if their
impact and incidence is to be
reduced. The research examines
case law and focus groups to
determine the “pathogens” and
possible costs of disputation in
projects

Gap in research and Problem

Most research looks at the factors that
cause dispute (same for Malawi IN A
STUDY THAT WAS DONE)
 Causes can be root or proximate
Root the underlying reason of the
problems which if eliminated would
prevent recurrence
Proximate immediately precedes and
produces the effect

Data collection method

 case law
 focus group discussions

Findings
 disputes are settled by ADR
(okay but what influences the
type of ADR?)
 Cause of dispute according to a
client due to the nature of task
being performed and peoples
deliberate practices
 Cause of dispute according to a
contractor unforeseen scope
changes
Further research
-in mine I can add in subcontractors
and consultants especially QS
consultants
-in mine I want to understand the
underlying conditions that allow this to
persist, becaue disputes keep
persisting
- A study way already done on factors
that cause disputes however in mine I
want to loos at the underlying reason
of the problem. Disputes are a
problem so what are the underlying
reasons of the problem
-how are dispute costs calculated in
Malawi? (What are the hidden costs
)
New words Latent condition:
Quick note there are certain
underlying conditions that lie dormant
until something is wrong

Susan The role of financial Issues addressed

Andrew institutions on the The construction industry plays major
Chimenya performance of Small role and signicant roles in
2015 and Medium employment creation and economic
construction firms: A growth (Kachanje, 2013)
case of Blantyre
Malawi Small and Medium enterprises play an
important role in providing
employment improving peoples
livelihood and in the overall economy.
In recognition of the role that SMEs
play in the economy the government
of Malawi has made the development
of SMEs a priority (Mulaga. 2013)
Looking at these SMEs is important
because according to Chilipunde
(2010) Small scale companies are an
important sector of any construction
economy
Objectives
To investigate the main sources( root
causes)
Contractors in Malawi are grouped by
the NCICM according to experience,
financial capabilities and technical
skills
Pic taken
Pic taken of what SMES are
Borrow (2011)
A small enterprise is one that is
usually private owned with limited
sales and stock volume and a small
work force.
The proper definition of SME is
unknown but (Chilipunde, 2010).
in Malawi definition of Smes
the definition of enterprise size as
stipulated in the Malawi SMEs policy is
based on the number of employees
and annual turnover. (Pic taken for
future reference) .
use of SMEs contractors that have
been in business for the past 3 to 10
years registered with the NCICM
50 contractors selected
Mulaga A.N
(2013)
 Analysis of External Financing Use : A
study of Small and Medium
Enterprises In Malawi.
Malawi government.(2007) Mirco,
small and Medium Enterprises Policy
2007- Government of Malawi.
Lilongwe, Malawi
Beck et al (2005).Financial and legal
constraints to firm growth does size
matter
NCICM (2000)
State of the construction industry in
Malawi and region cooperation and
the challenges the industry is
currently facing pp 11-13 2(1)
Emerging contractors report: National
Construction Industry of Malawi
publication
The south african construction micro
enterprise development challenge
Sme construction firms in Ghana

MacBen Analysing the Main Issues addressed

W. Mbale Causes of construction Disputes are regarded as a disease in
2014 disputes in Malawi. the construction industry.
This study focused on the main causes
of construction disputes among the
three main construction stakeholders.

Stated that the main cause of disputes

are caused by contractors with poor
planning programming and poor
standards of workmanship
Clients were the 2nd causative agents
with late payments and lowest price
mentality in engaging the contractors.
Consultants were found to be the
least.
BUT SUBCONTRACTORS THAT DEAL
WITH CONTRACTORS WERE NOT
LOOKED INTO
-(Sniesk, 2009)
The construction industry plays a
central role in national development,
including the development of nations
infrastructure and other public
facilities. As such the construction of
infrastructure is considered to be a
very strong economic growth indicator
in most countries
-Ashworth(2007)
Disputes have arisen in in the
construction industry because projects
have become more complex resulting
in heavy workload and contract
documentation, these care cause by
multiple prime contracting parties
Motsa (2006) this can result in
mediation ,litigation, there are some
many disputes that can occur
Time related (delayed processes)
Financial matters (claims and
payments)
Standards of workmanship(designs
and manual works)
Iilter and dikbas(2009)

In the exact words

The CI is prone to disputes and
conflict. Managing theses disputes is
one of the most significant elements
in assuring successful completion of a
project and successful management of
disputes depends highly on a well
understanding of the factors
influencing the occurrence of disputes.
In order to find the solutions there is a
need to these disputes in a similar to
medical treatment determine the
problem the select the suitable
method to correct it. There is a need
to ask who the source of dispute is
what is causing and what the impacts
and how can these be managed.

What is the problem?

Despite efforts to prevent disputes
they are still on the rise. They have a
negative impact on the industry. Find a
case where a project was affected by
a construction dispute
African development foundation in
Malawi v Malaya building
contractors(2011). These is a need to
find out who and what is causing it
and find the most efficient means or
solving disputes

Main objective
To identify and analyse means of
avoiding the occurrence of
construction disputes in the
construction industry.
The main aim and objectives will be
achieved by the following specific
objectives
Main cause of construction disputes
Analysing the impact of construction
disputes in the Malawi construction
industry
Identifying the best resolution
method( BUT WHAT COULD BE THE
BEST FOR ONE WOULDN’T BE THE
SAME FOR ANOTHER)
justification
This has been done to promote
awareness of root causes of disputes
among 3 stakeholders because there
is a need to have a better
understanding of the causative
agents, the impacts and how to better
manage these

It would also be good to look at what a

dispute is according to case law
Nyadani Buildinf & Plumbing
Contractors Company Limited V Khatri
Jan 26 1979. A dispute doesn’t exist
until a claim for damages has been
made by one party has been rejected
by another
Camicheal(2002) arise because each
stakeholder has their own objectives
and a case to back it up.
Great leaders who have discouraged
litigation
Motsa (2006)
Wahi(2008) effects of disputes on the
 CI
METHODS OF DISPUTE RESOLUTION
STATED
Litigation
Abitraction(Ashworth, 2007) this has
been widely chosen for construction
the same for Malawi
Wahi (2008) Minimising construction
disputes
Murdoch (2008) construction
contracts, law and management
Kumaraswamy (2009)
Carmichael(2002)
Disputes and international projects
So study is very different from mine
because the focuses on the general
quite general factors that cause
disputes
What dispute resolution methods and.
But mine is looking at the underlying
conditions that encourage disputes to
be reoccurring in the CI that
subcontractors are part of.

Leonia Assessing the Issues addressed

Lungu effectiveness of Aim the aim of every construction
(2015) Abitration in professional is to achieve a project
construction conflict within the stated time. But the process
management in is fraught with conflicts over
Malawi construction documents, existing
conditions. They are rampant in the
industry and negatively impact the
industry. Litigation as dispute
resolution is costly thus Abitration is
commonly used. It is also incorporated
into contract clauses.
According to lungu effectiveness of
ADRS methods need to be looked into.
Refers to Bekele (2005) a lot.
Maybe I could assess the knowledge
of ADRs methods among SMEs

I need to find the book but I read

some where that at the end of a
project there needs to be some
reflective process that takes place so
 see what went right and wrong during
the project, but do Malawian projects
do so?

Disputes can be said to be called a

disease because they keep
reoccurring
Busby Projects, pathogens This can help me back up my point
and and incubation periods that there are conditions in the
Hughes construction industry that foster that
(2004) encourage disputes I want to find out
what those are but in the context of
SME contractors.
Treacy et Construction disputes AIM
al (2016) in small to aims to identify the critical factors
medium enterprise’s in causing construction disputes in small
Ireland to
during recession medium enterprises (SMEs) in Ireland
Identification of critical during the recent recession period
factors from 2007 to 2013

GAP

METHODOLOGY

mixed-method approach incorporating a literature

review, case studies and questionnaire survey, with
results analysed using exploratory (data reduction)
factor analysis.

MAIN RESULTS
seven core critical factors which result in
construction disputes in SMEs in Ireland during a
recession: payment and extras; physical work
conditions; poor financial/legal practise; changes to
the agreed scope of works; time overrun; defects;
and requests for increase in speed of project and
long-term defects

INTERPRETATION OF RESULTS

MY THOUGHTS
 Look at Spillane et al (2011)
Owens (2008)
Sibanyama et al (2012)
Chenung and Yiu (2007)
Kumaraswamy 1997
Semple
Loosemore
Cheung 2009

-Its good to mention what previous

research has looked at in my case
disputes what been looks at the
effectiveness of arbitration as a
dispute resolution method in the
contract , performance of SMEs has
been looked at BUT not disputes in
construction projects with SME
contractors

solicitors https://dallasandcosolicitors.com/sme-services/
sme-dispute-resolution/
affects small business

My thoughts
ADRs lead to better management.
https://www.ashtonslegal.co.uk/insights/business-
news/corporate-and-commercial/new-research-
reveals-significant-and-detrimental-impact-of-
commercial-disputes-on-smes/
Disputes have a negative impact
https://www.lawbite.co.uk/resources/blog/how-
can-alternative-dispute-resolution-help-small-
businesses
how ADRs help Small Businesses

https://phoenixdisputesolutions.com/gb/news/
smes-and-alternative-dispute-resolution
methods are available but do they use them?

https://www.nyasatimes.com/govt-order-to-
prioritize-local-msme-businesses-companies-in-
public-procurement/
use of SME contractors

https://www.nyasatimes.com/malawi-gazettes-
smes-order-minister-gwengwe-warns-to-revoke-
licences-for-foreigners-doing-petty-businesses/
more promotion of SMEs

https://dailytrust.com/abuja-chamber-of-
commerce-tells-contractors-smes-to-avoid-courts-
in-settling-disputes/
use of ADR to avoid disputes

https://constructionmanagement.co.uk/can-you-
survive-and-thrive-as-a-construction-sme/
smes being the backbone of construction

https://www.treasurers.org/hub/treasurer-
magazine/%C2%A312bn-uk-sme-funds-tied-
disputes-says-fsb
SMes and disputes; very expensive

https://arbicon.co.uk/blog/commercial-issues-that-
lead-to-construction-disputes

don’t have the commercial knowledge and resources

to deal with or avoid disputes and implement
commercial protection.

https://www.clydeco.com/en/insights/2021/10/a-closer-
look-at-smes-in-the-construction-pi-insur
SMES are vulnerable to such risks as they do not have
bargaining power or the commercial savviness to limit
 their contractual exposures.

FSB (2016) Strictly SMEs and ADRs

Tied up
Unravelling the SMEs in the UK are part of the federation of small
dispute and businesses
resolution
process for small - Access to justice is a burning issue for
firms small businesses
- Small business are significantly less well
equipped for resolving disputes.
- Small businesses depend on clients for
survival
- Consequences to a small business can be
detrimental from cash flow to insolvency
- Small businesses are not well equipped with
dealing with disputes, they do not have the
resources to pursue a problem
- Small business are vulnerable in dispute
situations (THAT’S THE PROBLEM)
- When SMEs face dispute they not well
equipped that’s the problem
- Small businesses are vulnerable and a dispute can have
significant, in some cases existential, implications.
Therefore, it is imperative that commercial disputes are
avoided where possible and, if they arise, are resolved in
the least costly way while delivering, as far as practicable, a
fair, just and economically efficient outcome.
- 70% of small businesses have atleast 1
commercial Most of the firms are involved in
a commercial disute at one time or another
- 17% cannot resolve a dispute

Alternative
Disoute
Resolution in
SMEs in the
Construction
Industry in
Masvingo Urban Issues
Zimbabwe Dispute dangling may present particular problems
(Tavengahama for SMEs
et al, 2020)
By virtue of their size it is difficult for them to
conduct dispute resolution

SMEs play a pivotal role in the nations

development eg creation of employment

Definitions of SMEs vary can be based on

employee number etc

ADR methods are available to SMEs

ADR by its nature suits SMEs in that ADR

encourages informal approaches

Data that shows that SMEs have a difficult is

applying Dispute resolution method

The This offers insight into the current preference and

implementation the application of ADR methods by architectural
of alternative practitioners
dispute
resolution From the literature it is unknown which ADR
methods by methods are currently preferred by SA
architectural architectural practitioners
practitioners in
South Africa For me the ADR methods that are currently use
are unknown, it is against this background that
this study has been initiated to

Doing this will assist practitioners in ensuring that

proper decision making processes are place in
place to deal with disputes in future projects

The main goal of ADR is to provide a wide range

of procedures that are appropriate to all parties in
order to resolve disputes without use of litigation.

ADR advantages and disadvantages

ADR methods are incorporated into a variety of

 contracts

Look at Van Zyl(2010)

Adjudication and arbitration a neutral third patry

decides on the dispute
Negotiation, mediation where the parties plan on
reaching a compromise

Legal risk They have dispute resolution as a legal risk (this

identification for means that these is potential that a dispute with
SMEs in the X will disrupt your business.
Construction
Industry
Charlson and
oduoza 2014
Contractor The constraints on indigenous contractors and
development in professionals were reported
Nigeria:
Perceptions of Resolving contract disputes was one of the
contractors and constraints that affect a contractors performance
professionals
Adams (2010)
Chong et al They also use informal method of dispute
2010 resolution
Selection of Eg negotiation
dispute
resolution
methods: factor This study can help me achieve my objective No 2
analysis and No 3
approach
Factors This can help me achieve my objective No 2 and
influencing use No 3
of Alternative
Dispute https://mwnation.com/malawi-government-to-pay-
resolution in the firm-over-k5bn/
construction
projects: Acase
of Imenti North
Sub County
Meru County
Kirimi & Wanjohi
(2019)

Musonda and Aim

Muya Study the nature and the extent of the application
of ADR in the construction industry
Construction Main results
Dispute ADR was not widely used in the construction
Management of industry due to factors xxx
resolution in
Zambia You can adopt the key words

n South Africa, for example, the white paper on “Creating an

enabling environment for reconstruction, growth, and development
in the construction industry” [Department of Public Works (DPW)
1999] argued that the conventional mechanisms and procedures for
final dispute resolution, normally arbitration or litigation, were both
costly and time consuming. It further stated that small and
emerging contractors were disadvantaged and even imperiled—in
the event of a major dispute arising. The paper advocated the use
of ADR mechanisms in contracts and recommended that the
Latham report (1994) should be used as the point of departure in
this regard [Construction Industry Development Board (CIDB) 2003].

The main problem explained and content on it.

https://www.lorman.com/resources/managing-
construction-projects-resolving-disputes-in-real-
time-17340

Author Title Critical Analysis

Overall findings

Issues addressed.
- Disputes are often embedded in the tender and
construction documentation, only waiting for the right
opportunity to materialize . (Linking this back to that
there are certain conditions that allow disputes to
continue to occur in the industry)
- under traditional conditions of contract, the dispute is
referred to arbitration, a form of alternative dispute
resolution (ADR) or litigation. (This is the same for
Malawi in the standard form of contracts that we use)
- What standard forms are the advantages and
disadvantages. What Standard Forms as used in
Malawi?
- The owner and the client have different priorities this
causes disputes (Howard et al, 1997)
- Link back to the point that disputes have direct and
indirect coats, in this article , disputes result in project
delays and cost overruns and have a negative impact
on the whole construction process and s. Indirect costs
of a dispute, such as loss of productivity of the staff
engaged in resolving the dispute. Because of this it is
important . It is, therefore, of paramount importance
to be prepared to handle such disputes through the
use of effective dispute management systems and
techniques, thereby mitigating their damaging effects
(But SME are ill equipped at handling disputes Zim,
2020)
- In Zambia Dispute resolution is still heavily influenced
by Litigation, Litigation is seen as effective because it
uses force to enforce judgement
- Litogation is a hindrance to Justice ( Meaning that even
if SME use this they do not get Justice)
- The construction industry as of late has been looking
for less adversarial ways/ methods of dispute
resolutions
- Abitration is an ADR but it seems to be similar to
litigation
- In other countries such as Australia, New Zealand
primary legislation has been conducted that parties to
construction contracts a statutory right to have
disputes resolved in the first instance by adjudication,
which was to be a rapid and relatively inexpensive
process in all cases. (For the development of a dispute
adjudication center)
- In South Africa,i t further stated that small and
emerging contractors were disadvantaged and even
imperiled—in the event of a major dispute arising.
Imperiled - in the dictionary this means at risk of being
harmed,(Connection to them being at legal risk of
dispute resolution of dispute resolution meaning that
the potential of a dispute occurring has a negative
impact on the company)

There are some steps that have to be taken when

 resolving a dispute.
There are informal and formal dispute resolution
methods. Formal dispute resolution methods are
unsatisfactory to both parties
It would be more important to avoid the dispute all
together by
s partnering, dispute boards, and dispute resolution
advisers. (You can read on the dispute avoidance
methods)

Jagannathan Litigation in - Management of people and their

& Delhi constructio behaviour to make construction projects
(2019) n contracts less prone to litigation
- Litigation is preferred among parties when there is a
need for the decision to be enforced (Chan et al.
2006), From this it states that litigation takes time in
the India, but is it that same in Malawi????
- In addition, specifically in the context of construction,
some researchers have pointed out that parties tend
to adopt litigation in construction projects when their
dispute is backed by an existing precedence (Harmon
2003), when there is no teamwork among the
participants (Simons 1993), in cases of corruption
during arbitration process (Hansen 2019), fear due to
auditing, and vigilance agencies (Bharti and Thakkar
2013; Chaturvedi 2010; Moza and Paul 2016
- Parties do not just go straight to
litigation there are three steps that the
parties have to go through.
- People and behaviour aspects have a
huge role to play when it comes to
movement to litigation
- Gap: thus, there is a need for construction
management researchers to place greater focus on
exploring the people and behavioral factors that tend
to drive parties toward litigation
- To summarize the discussion so far, the key findings
from the literature were that litigation is primarily
caused by factors that can be grouped under people
and behavior
- In spite of the presence of many superior alternate
disputes resolution methods, litigation seems to be a
sought-after option to resolve disputes. Before the
parties resort to litigation, the subject matter of the
dispute travels through various stages that include
claim rejection and dispute escalation, and generally it
 is after these stages that the parties adopt litigation as
a means to resolve disputes among them
- a badly drafted contract bears an influence that can
promote litigation among parties, and more
interestingly a welldrafted contract, though necessary,
may not have complete influence on promoting
peaceful and amicable resolution of disputes among
the parties to the contract. Therefore, preventing
litigation among the parties is beyond the realm of
well-drafted contracts and it extends into the
behavioral aspects of people involved in the dispute

Ekhator Investigatin Use of a questionnaire to consultant,

(2016) g causes of contractor and the client.
disputes in Definition of a dispute
Building Cheung and Pang (2010) cited in Tillet (1991) defined
constructio Construction dispute as the incompatibility of two (or more)
n projects people’s (or groups) interest, needs or goals.
in Nigeria Disputes usually arise when parties are unable to resolve or
arrive at a common ground when they disagree on contractual
issues
A claim is the contracts request for an extension of time or a
reimbursement of an additional cost or sometimes both.
Look at the reference Page for more ideas
Cheug et al Convergent Disputes are the cause of project failure
2015 views of - One of the fundamental causes of project failure in the
neutrals construction industry is the proliferation of disputes
and users ~Merna and Bower 1997!
about ADRs are being used, but the data for Malawi
Alternative is not known
dispute - In fact, the escalation in costs, delays, and adversarial
resolution relationship associated with litigation has contributed
to the rapid growth of ADR ~Mackie 1991; Fenn et al.
1998; Brown and Marriott 1999!

Dispute resolution has been advocated for

by other countries but not for Malawi no
data
- Because of its advantages over traditional litigation,
ADR has been advocated by dispute resolution
organizations in many parts of the word
But ADR do not have strict legal rules like
mediation for example
- Unlike traditional litigation proceedings, ADR
processes are not restricted by strict legal rules and
practices. The administration of ADR is heavily
dependent on open communication between the
 disputants and the neutrals (This Presents a weakness
of ADR, So both parties need to want the dispute to be
resolved)
- . In doing so, success requires mutual understanding
and well-aligned, common goals (BY both of the
parties in the dispute It is important to mention this
point)
- Definition of common goals of ADRs are
necessary at the start of this Alternative
Dispute Resolution.
- Alternative Dispute resolution has
features. It is important to state what
these are in the literature review
- ADR has features that can be
categorized; nature ~input!, neutral ~process!,
settlement ~output!, and benefit
-