Construction Conflict Management

Foundations Module Overview: Build a foundation in key areas and gain valuable background information and context before the live program begins. Explore the key processes, stakeholders, statutory frameworks, and professional considerations that shape construction conflict and dispute resolution.

Overview of the Construction Dispute Resolution Processes

Learn how the major dispute resolution pathways fit together, when each delivers the most value, and how process selection can influence cost, timing, relationships, and outcomes.

Overview of Early Dispute Resolution Pathways

Explore the tools available to address conflict before positions harden and understand how early intervention can preserve both relationships and resolution opportunities.

Prompt Payment and Jurisdiction Essentials

Understand how statutory payment requirements shape project behaviour, conflict dynamics, and dispute resolution strategy across jurisdictions.

The Other Seat at the Table: The Insurer Perspective

Gain insight into how insurers influence authority, decision-making, negotiation dynamics, and settlement opportunities.

Don’t Make it Worse: Professionalism Essentials for Construction Disputes

Learn how professionalism, communication, and expectation management can affect credibility, escalation, and opportunities for resolution.

Module 1 Overview: The initial phase of the conflict (“the First 30 Days”) will often determine the character of everything that follows, particularly whether the conflict will resolve effectively or devolve into a prolonged and destructive dispute. Focus on asking the questions that build a relationship‑first foundation and a control‑the‑process mindset to manage this initial phase of conflict resolution before positions harden. Early moves define outcomes.

The Construction Conflict Management Mindset: A Shared Framework

• How construction disputes are different and why “How are we going to win?” is often the wrong question
• The root causes of construction conflict
• Is conflict always a bad thing? Keep an eye on creative possibilities/solutions
• The dispute resolution spectrum – understanding how finding the off-ramps becomes more difficult the deeper you go
• The relational contract lens – why construction agreements behave differently from transactional contracts (extended duration, certainty of change)
• Why a “control the process” mindset matters and what’s in it for you (e.g. Conflict may be inevitable but active dispute is not)
• Tailoring the approach to the counterparty (private owner vs. IO/municipal vs. national contractor vs. design professional)
• Keeping control of the dispute resolution process

Dispute Prevention: Asking the Right Questions Before You’re in Trouble

Learn how contracts, governance structures, stakeholder dynamics, and risk allocation decisions can create conditions for conflict long before a dispute emerges.

• Why asking the right questions at the outset can make a real difference
• “Should we be signing this contract at all?” Analysis of the key stakeholders and associated considerations
• “Is the contract setting up a dispute before the project even starts?” An examination of whether any contractual or governance mechanisms are misaligned, ambiguous or otherwise one-sided or off-balance in the allocations of risk and responsibility
• A construction contract is relational, not transactional
  • Framing an effective approach to negotiating a construction contract
  • Identifying terms and conditions that promote conflict
  • The importance of a dispute management scheme in the contract
• Standard form contracts vs bespoke forms
• Using the team effectively – including your internal staff, lawyer, surety, other advisors

When Conflict Hits: “The First 30 Days” Triage

Build a practical triage framework for stabilizing relationships, preserving facts, evaluating options, and setting the stage for resolution.

• How the first steps after a conflict has arisen determine what follows
• Recognizing that parties who bring claims act in fundamentally different ways than parties who receive them – “How will our behaviour affect the behaviour of our counterparty?”
• “What are the most effective steps we can take to get to resolution quickly?”
• The Triage, “Setting the stage for effective conflict resolution”
• Priorities: fact preservation, relationship stabilization, governance activation, options mapping
• Group Workshop: Build Your Triage Sheet (template)

Module 2 Overview: Understanding that well over 90% of construction disputes end in negotiated settlements, make negotiation the centrepiece of your resolution strategy. Shift from win the fight and rights-talk to credible, fast resolution and durable peace under the contract, and focus on objective processes/options without damaging relationships. How do we resolve this directly with the other party?

Building a Negotiation Strategy that Works

• Rethinking “winning” versus “What will meet the best interests of the project?”
• The importance of credibility – earning it and maintaining it
• “Since over 90% of construction disputes resolve by negotiated settlements, how shall we set up and maintain a negotiation strategy that achieves this as quickly as possible?”
• What is the secret to effective negotiation?
• Preparing to negotiate – a establishing a planning canvas: identifying interests, the BATNA, worst case scenario (i.e. WATNA), rules governing the process, success measures

Dealing with Problems in Negotiation and the Difficult Counterparty Toolkit

• The range of unfair, improper negotiation tactics, and dealing with them
• Negotiating with those who will not engage – “Are we aware of their true interests”
• Solving the problem of the competing narratives
  • Narrative vs. counter-narrative – isolate what’s provable; settle the majority early
  • Creating the “facts first” worksheet and negotiation agenda that moves beyond rehashing expert reports
• Building the Difficult Counterparty Toolkit:
  • When negotiations stall, how uncover the source of the impasse and keep talks moving? This segment outlines a simple, practical framework for diagnosing the source of the impasse, identifying interests, constraints, conditions for settlement, and for keeping the matter moving toward resolution.
  • Developing calibrated questions to deal with deadlock

Live Negotiation Simulation Workshop

Apply negotiation concepts in a facilitated, real-world simulation and receive practical insights from experienced facilitators. This workshop will feature a live negotiation exercise with coach feedback, including planning for negotiation, canvassing interests, BATNA, and issues involving credibility, concession strategy and process control. Participants will assume the differing roles of owner, contractor and consultant, with the objective of reaching agreement or narrowing the issues

Lessons From Effective Construction Negotiators

• What does it mean to negotiate at each stage of the construction process
• The “Prisoner’s Dilemma” and its role in creating a successful strategy
• What works and why
• Credibility: hard won, easily lost
• When to pause, when to pivot, when to “call a friend” for an objective view

Module 3 Overview: When direct negotiation stalls, the assistance of a third party can often unblock impasses and move the parties towards settlement. There are a range of cost-effective relationship‑preserving options available to resolve issues early. Know when each delivers the most value, and scale intelligibly from simpler projects to complex or long-duration projects. What do we do when direct negotiation is insufficient?

Choosing the Right Early Intervention Tool

• Early Neutral Evaluation (ENE)
  • What it is and when is it appropriate
  • The role of the ENE
  • Practical considerations – how to frame the “short list of questions”
  • What “just enough” material looks like
• Referee
  • What it is and when is it appropriate
  • The role of the Referee
  • Practical considerations – fit with the project governance
  • Speed vs. certainty
• Dispute Review Boards
  • What are they and when are they appropriate
  • The role of the DRB
  • Standing vs ad hoc
  • The cost/benefit problem
  • Are they scalable, or is it always “one size fits all”
  • Configuration options – “forensic DRBs”, proactive wise-person models, dual-track boards that can shift into determinations when necessary
  • Setting up and managing a DRB
    • Who should be on the board
    • What shall be its terms of reference (ToR) and Standard Operating Procedures
    • Shall DRB recommendations be binding or non-binding?
    • Costs/fees – who pays?

Mediation in Practice: What Works and What Doesn’t

• What is mediation?
• When is the best time to mediate?
• Choosing the mediator
• The mediation brief that gets read – short and persuasive brief structure
• Special considerations in multi-party mediations
• The proper role of counsel in mediation – both prior to and during the mediation

Simulation Workshop: Real-World Construction Mediation

Work through a realistic mediation scenario and learn practical techniques for overcoming impasse and moving negotiations toward resolution. This workshop expands upon the learning from the mediation session using a real-world scenario and expert facilitator insights. Participants will work through issues including:

• Preparing to mediate: Framing the issues – “What is our story?”
• When clients negotiate without lawyers (and how to capture offers reliably)
• How to manage conditional offers, shifting terms, and settlement architecture
• Getting to closure: Unblocking stalled talks

Inside Successful Construction Mediations

• The mediator’s role prior to the mediation session
• Structuring the mediation session
• What is the right time to exchange offers?
• Overcoming the impasse: “What made them move?”
• Tips and tricks: e.g. expert hot‑tubbing; in camera sessions with counsel or the parties; the strategic adjournment

Module 4 Overview: On occasion, the intervention of a third party will require a formal adjudicative process to settle a dispute which the parties are unable to resolve between themselves. Adjudication under provincial lien legislation is increasingly available in Canada to resolve discrete disputes, and arbitration is the methodology of choice for many other types of disputes, particularly those involving multiple issues and substantial claims. Gain fluency in document‑led, time‑compressed adjudication determinations, avoid timing and jurisdiction traps, and escalate proportionately to a lean arbitration only if needed.

Adjudication: Strategy, Timing and Execution

• What is adjudication?
• Availability of adjudication across Canada
• Why adjudicate?
• What can be adjudicated?
• What makes a good referral – jurisdiction and timing pitfalls
• Strategies for effective adjudication
• Preparing the adjudication documentation – write clearly, build a persuasive record

The Adjudication Hot Seat – What Would You Do?

This interactive session brings together key themes from the adjudication session through real-world scenarios and expert insights. Participants will be invited to vote on “What would you do?” in challenging situations, hear expert analysis from practicing adjudicator facilitators, and engage in open discussion. This session bridges theory and practice in a highly engaging, hybrid format.

Lean Arbitration: Tailoring the Process to the Dispute

• Why arbitrate? When is it appropriate?
  • Scope, eligibility, 30‑day determinations, interim binding effect (“pay‑now/argue‑later”), and common traps (timing/jurisdiction, consolidation)
• “Lean levers” you can import by agreement: narrowed issues, expedited schedule, virtual hearing, confidentiality, joinder windows, summary disposition/award clarification
• Selecting the arbitration panel
• Jurisdictional considerations
• Effective preparation for arbitration
• The conduct of the hearing
• Building useful precedents: arbitration clauses and agreement drafting
• Sample arbitration clauses; sample arbitration agreement framework
• Practical “red flag” review: how language can kill speed and control

What Decision-Makers Want You to Know

• Adjudication is not arbitration: What are the differences?
• What wins?
• Common mistakes
• Settlement triggers
• Insights on what they want and need to hear when deciding the case

Module 5 Overview: Litigation in court may prove to be your only option to resolve the dispute. There are options even in litigation which can keep the process proportionate to the problem and avoid excessive waste. Finally, Module 5 will culminate in an extended workshop which will integrate end‑to‑end learning into executive‑ready outputs. By the end of the program, you will have developed your own consolidated Construction Conflict Management Playbook for use across projects and provinces.

Litigation: Knowing When it Makes Sense

• When is litigation appropriate?
• Proportionality and decision criteria, interface management with arbitration/ADR, key considerations checklist
• Using the court process to maximize efficiency, minimize wasted resources and get to a decision
• Targeted discovery, case management, and preserving options to settle

Capstone Simulation: Putting it All Together – From Project Issue to Resolution

Build your own consolidated Construction Conflict Management Playbook while working through a realistic construction conflict scenario designed to strengthen your ability to apply the concepts, tools, and approaches explored throughout the certificate. As the situation evolves, you will confront new challenges, make difficult judgment calls, evaluate competing pathways, and develop practical strategies for moving the matter toward resolution.

Facilitated by highly experienced construction lawyers, neutrals, and industry professionals, the simulation includes real-time coaching, practical guidance, and personalized feedback. You will have the opportunity to test your thinking, refine your approach, learn from experienced practitioners and colleagues, and build confidence in applying the program’s concepts in practice.

Capstone Panel: Inside the Decision Room – The Judges Speak

• How the court can enhance proportionality
• What a judge needs to see in deciding a dispute
• Credibility markers
• How parties can help or hinder outcomes
• Lessons learned, top tips and “pet peeves”

Post-Program: Online Final Exam – Deadline February 22, 2027

To obtain a certificate, participants must complete all program content and pass the program’s final assessment (an online exam) by the deadline. The online exam is designed to reinforce key concepts and build confidence with applying the program material. The exam consists of 30 multiple-choice questions, the passing grade is 80% (which equals correctly answering 24 of 30 questions), and participants will have multiple attempts/sittings to pass until the deadline.