Prospective delay analysis and adjudication

Weaknesses that can affect the validity and reliability of some delay claims have been exposed. In light of such criticism, the Society of Construction Law developed the Delay and Disruption Protocol. Amongst other things, the protocol recommended that delays should be dealt with prospectively and if matters are not resolved they should be referred to an Adjudicator. Even with this advice, some lawyers believe that prospective analysis is too theoretical and that adjudication should not be used to resolve such complicated matters. Using focus groups, the suitability of adjudication for resolving delay disputes prospectively was investigated. Arguments for and against the use of critical path analysis emerged, and the use of prospective analysis in delay claims was challenged. The subjectivity of delay analysis was the focus of much debate. Although opinions differed on the use of prospective and retrospective analysis, the most persuasive argument was for matters to be resolved when delays were first suspected and, if necessary, disputes should be dealt with prospectively by an adjudicator. Dealing with matters early ensured that the facts leading to the delay were less distorted by time and opportunities for the stakeholders to manage and mitigate the risks were highest.