In any dispute between a property developer and a contractor, there are likely to be enormous costs and possibly untold delays to the project if the case goes to court. Ultimately, all the parties involved will lose out, either financially or through not having use of the completed building or infrastructure. However, trained mediators in the surveying profession can help to avoid such problems and have proved themselves indispensable in resolving things before costly litigation ensues.
Peter Ho is widely recognised as one of the more experienced construction mediators in Hong Kong. He is quick to point out that each case is unique, since every project involves different parameters and contractual agreements. "Most disputes concern misunderstandings between the protagonists," he notes. "A neutral party can help negotiate and seek mutually acceptable compromises through collaborative effort and open dialogue."
He adds that this often requires an understanding of the parties' real motivations and interests. It is also essential to encourage empathy and to understand the respective viewpoints. Disputes may be about money, alleged wrongdoing, deadlines, or work practices. "When the two sides air their grievances, they often see the reasons for what has happened, which makes it easier to reach a resolution," Mr Ho says.
A neutral party can help negotiate and seek mutually acceptable compromises
Unresolved cases are taken to a tribunal. Mr Ho may then be asked to act as an expert witness and give his professional opinion to the appointed arbitrator or the court. "Unlike a lawyer representing a client in court, an expert witness has to act impartially in these circumstances," he explains. In recent years, arbitrators have started using tribunal-appointed expert witnesses as a way of reducing costs. At times, Mr Ho may also take the role of arbitrator.
He initially gained experience as a quantity surveyor in England and, after more than 15 years working there, he returned to Hong Kong and set up Ho + Allington Limited (H+A). In January 2006, H+A merged with EC Harris (Hong Kong), an international consultancy specialising in the property and construction sector.
The basic work of a quantity surveyor involves evaluating the full costs and plans for construction projects. This covers the choice of asset location, cost planning, procurement strategy, and the preparation of contract documentation. Surveyors should also expect to spend a significant amount of time on site to monitor progress.
Experience gained in this way prepared Mr Ho for his work as a mediator. "Integrity is also crucial for an expert witness," he notes. "If an arbitrator thinks you're unreliable, he is likely to attach little or no weight to your evidence."
A surveyor needs at least 10 to 15 years' practical experience to become a mediator or expert witness. It is also necessary to have a good understanding of financing arrangements, plus the communication skills to elicit information and command respect. Obviously, confidentiality must be respected at all times.
Bearing this in mind, Mr Ho advises young people interested in pursuing such a career to "be proud of the profession and act in accordance with the guidelines and practice statement."
As chairman of the Hong Kong chapter of the dispute resolution faculty of the Royal Institution of Chartered Surveyors (RICS), he also emphasises the need for continuing professional training in specialist areas. For instance, a qualified surveyor might consider taking a master's degree in construction law or a Hong Kong International Arbitration Centre (HKIAC) training course before becoming an accredited mediator.
Mr Ho adds that RICS membership is globally recognised and brings a number of advantages. "When the Hong Kong market is quiet, it enables you to practise overseas and to work on a wide variety of construction projects," he says.
Regulations still limit the extent to which international surveying firms can practise on the mainland. They are currently required to partner Chinese firms but, under the CEPA agreement, Hong Kong companies are exempt from this stipulation.
Nowadays, the 2008 Beijing Olympics and developments in China's western provinces are creating numerous opportunities. "Whenever there are projects, there will be discrepancies," Mr Ho warns. "Therefore, it is important to educate clients to plan their budgets and work schedules precisely, so that projects can be implemented on time and without disputes."