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Legal Notes: Using BIM as a dispute resolution tool

John Bleasby
Legal Notes: Using BIM as a dispute resolution tool

Building Information Modeling (BIM) is a term used commonly in construction. Yet, it is a complex blend of digital technologies that is often challenging to precisely define.

Mark Berry, partner and senior associate Ahmed Bobat, both at the Dubai offices of global law firm Norton Rose Fulbright LLP, attempt to summarize the various elements of BIM.

“In simple terms, BIM is a process, or a way of working, which involves multiple stakeholders collaborating whilst using intelligent 3D models.”

In typical construction disputes, the reconstruction of events that includes design, timing, resourcing, sequencing of works and costing is often arduous.

“What tends to result is a laborious, costly and time-consuming task for employers, contractors, counsel and arbitrators alike,” they write.

However, BIM can provide clear visual aids to help courts and judicial tribunals better understand claims that can become quite technical.

Berry and Bobat refer to BIM as a three-dimensional technology in terms of visualization. They summarize typical construction claims under three headings: Design co-ordination, design change and extension of time and associated costs.

Greg Bentley, CEO of construction software developer Bentley Systems, takes the potential of BIM further. He told McKinsey, “Infrastructure project delivery, and especially construction, is fundamentally a 4D endeavour.”

Those are widely accepted as scope, time, cost and quality.

Nevertheless, what is important is that construction disputes are complex nowadays, and BIM can help deal with the issues that arise.

“Model analysis has the capability visually to demonstrate that which can otherwise occupy many pages of a written submission, and the written submission may yet still remain unclear,” write Berry and Bobat. “Technical issues may be complex, perhaps further exacerbated when the languages between parties, lawyers, experts and tribunals differ. Language barriers and translation issues can potentially be mitigated through the use of a model and visual evidence.

“Ideally, BIM will have been used by the parties at the outset and contain contemporaneous building information models,” they continue. “Models can be created specifically for claims after they have crystalized. However, models created after the event are not the same as contemporaneous building information models.”

Geoffroy Bertrand of FTI Consulting and René-Martin Langlois, an associate with Langlois Lawyers LLP, summarize the use of BIM as serving three functions in dispute resolutions, beginning with 3D visualization of the project.

“The digital model allows the contractor to offer a detailed and interactive visual of the entire project and its components, the scope of the work as well as the operational constraints experienced in situ during construction.”

They continue that outlining 4D BIM capabilities linking the digital model with temporal data makes it possible “to create a 3D spatio-temporal simulation demonstrating the planned sequence of work.”

As a third capability, they write of simplifying technical impacts.

“The digital model can also be used to explain the impact of changes occurring within the framework of a project. By juxtaposing the initial design with the modified design (incorporating the proposed change), the parties are able to more easily visualize the scope of the changes on the work as well as their impacts.”

As useful as BIM can be, it is a new technology, particularly among legal professionals, write Michel Guévremont and Amin Hammad in their paper concerning 4D and construction responsibilities, published by the American Society of Civil Engineers.

Berry, Bobat, Bertrand and Langlois all agree.

“The use of BIM in construction arbitration is an example of a new approach to an old problem (namely, the gathering, assimilation and use of construction data),” write Berry and Bobat. “Models can improve how cases are presented at arbitration in a manner which is engaging and has the potential to save both time and cost for all parties involved.”

“We are currently in the midst of a wave of major changes in the construction industry, characterized by what many are calling a ‘Construction 4.0’ digital revolution,” write Bertrand and Langlois.” The use of digital tools to support the presentation of claims will become essential in the coming years.”

John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to

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Gino Di Ciocco Image Gino Di Ciocco

Good Article John.
I can vouch that 3D presentations are truly effective.
I was involved in a case involving a Times Square hotel in NYC back in 1995 where we were one of the first to use 3D Animation in a trial setting. The jury greatly appreciated the visual presentations (Building elements, structural issues and schedule delays) — It greatly simplified complicated construction issues and made them easier to understand for a layperson. And we yes, we won the case. Btw, I believe articles have been written about being the first trial to use animation in a construction case (I believe they had only been used on accidents cases prior to that).


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