By Steve Rizer
What is the first step that should be taken when trying to avoid disputes in a construction project? During a webinar that WPL Publishing held last week, Roy Mitchell, a mediator and arbitrator who serves as the Center for Management Development and Training Inc.’s chairperson, discussed what he believes this step should be as part of a larger strategy to prevent disputes.
“In order to avoid disputes, you want to first of all anticipate the areas of [potential] dispute so that you can try [to] write into the contract what you want done in case an issue of that nature arises,” Mitchell said, noting that the advice applies not only to architects and engineers but also to contractors.
As another step for avoiding disputes, it is important to make a contract “very clear and complete,” Mitchell said. “Very often, we see design contracts [in which] the design is 80 [to] 90 percent done and the rest of it is supposedly ‘field fit’ by the contractor. That’s a real red flag because the way the contractor reads that contract is different than the way the architects and engineers who wrote it will read it. There’s bound to be a dispute, and you might well lose, so be careful of that.”
Mitchell then implored webinar attendees to “know your contract. Read it carefully.”
Good communication also is important for avoiding disputes, Mitchell said. “If you’re dealing with your other contracting party, [whether it be] the owner with whom you are working or the contractor with whom you are working, good communication can help a great deal in avoiding disputes.”
Another key is “good documentation,” according to Mitchell. “If you can prove your case, if you’ve got the facts, the [paper or digital] documents to prove it, you can avoid disputes in many instances because you will have cowed the other side into understanding that you’re right, and you don’t have to have a big fight about it.”
“Good contract administration” also is important for avoiding disputes, Mitchell said. “Be timely and responsive. Lots and lots of claims by construction contractors arise because an issue is brought to the attention of the owner. The designer or the architect goes out to review it on behalf of the owner, and then there’s no resolution on a timely basis. So, be timely and responsive in those.”
The last key that Mitchell discussed during the segment involves recognizing danger signals. “If there are delays being regularly cited by the contractor, if there are notices of claim coming in, obviously you know you’ve got a potential dispute, and you need to take a look at what you can do to resolve the issue and minimize the dispute.”
Other webinar segments focused on the types and sources of law, intellectual property, torts, basic contract concepts, contract formation, express and implied duties, risk allocation, scheduling clauses, constructive changes, differing site conditions, types of delay, acceleration, among other topics.
To purchase a recording of the 90-minute webinar, entitled “Practical Contract Law for Architects and Engineers,” visit http://constructionpronet.com/Products/1060.aspx.
