Processus de gestion des litiges dans l'industrie de la construction

Construction projects are becoming more and more complex and various contractual strategies may be employed. For an Engineering, Procurement and Construction Management contract, collaboration between the different actors is essential from the very beginning of the project to plan the different deadlines in order to take into account all the constraints. Working upstream reduces the occurrence of problems that could lead to claims. As long as trust and dialogue are present, disputes can be settled by mutual agreement, but if dialogue is cut off, the negotiation phases are over. The solution is then to move to alternative dispute resolution methods involving an outside third-party mediator. If, in spite of this, no agreement is reached, the last option is to proceed to legal proceedings including arbitration and litigation. To be able to manage a dispute, it is important to have a resource person who has some objectivity on the project. Some companies call upon expert firms at the beginning of the project to manage claims as needed while others call upon them only when the claim arises. In both cases, a litigation resource person must be able to follow the progress of the dispute and anticipate the next steps. This research project is part of the improvement of litigation management. The diagnosis of the state of the art reveals a significant number of written works on claims management, agreeing on six main phases. However, only one article proposes a complete claims management process for the supply chain domain and not a single article addresses the transition to litigation. Observations made in a partner company also reveal a lack of processes for handling litigation. The main objective of this project is to develop a litigation management process for the construction industry in Quebec to guide future litigation project managers, whether they are on the plaintiff's or defendant's side of the claim. The Design Research Methodology was employed to conduct this research. This approach first confirmed the problem raised by the literature review by confronting it with an analysis of the existing situation at an industrial partner. Without a process structuring the management of the litigation, project managers are not able to have an overall view of the procedure. Second, our mixed methodology, combining empirical studies and scientific approaches, allowed us to develop and validate a litigation management process. The development of the process was based on available data from the industrial partner's litigation project and feedback from a project manager and the firm's in-house lawyers. The process designed links the litigation team, outside lawyers and experts collaborating to build a defence case. The process, which is divided into ten phases, contains sequences of activities, resources, input and output documents and deliverables. Finally, the proposed model was validated by a succession of audits with lawyers and an expert from a company specialized in dispute management. This validation was based on their feedback since no mapped litigation process exists either in this industry or in the scientific literature. The evaluation of the process by means of standardization indicators provided a good basis for establishing the standardization of the process, but also its generalization since it is used by the expert company for different types of projects and contracts in the construction industry. With this process, litigation managers will be able to oversee litigation, which could reduce the time and therefore the associated costs.