Construction Process Public- statutory control of process Private- market control of process Traditional system: Owner Arch/EngrContractor Non-contractual relationship Contract for construction Contract for design
Construction Process Process is influenced by: –Delivery system used –Project stakeholder map complexity –Financing –Location Unions Services “sophistication” Political climate and support for growth
Construction process Alternative Delivery Systems- design build, CM at risk, public-private partnership, contractor warranty and maintenance bids Expert testimony- projects are more complex and involve more parties, use of experts will grow (can be lucrative) Waiver of claim- designers trying to buy bid waivers- many courts have thrown them out
Construction Process Project stakeholder maps Owner finances developer legal counsel marketing Designer consultants engineers (M,S,E,C) architects interiors Builder unions labor providers subcontractors inspectors Indirect stakeholders: Neighborhoods Community groups Environmental groups Political leaders
Issues in the Profession Avoiding lawsuits –Be honest, admit mistakes –Add value for those paying you –Pay those who add value for you –Cooperate to fix mistakes (don’t punish) –Don’t get fixated on small issues –Understand and listen well –Learn that different is not wrong or bad –Avoid “standing on principle”- pick your battles
Dispute Resolution Dispute resolution- contractor and owner/subcontractor can differ on dispute resolution terms. Best to stay out of court. Different avenues for resolving disagreements other than hiring a lawyer
Dispute Resolution Staying out of court should be the ultimate goal- use alternative dispute resolution Avoidance- ignore the conflict, don’t talk to other party; usually leads to bigger problem Intimidation- threaten the other party- don’t take the bait (illegal in many situations) Negotiation- non-legal, or before a lawsuit ahs been filed; interaction aimed at compromise or win-win. Best Alternative to a Negotiated Agreement is basis for judgment
Dispute Resolution Attorney assisted negotiation- legal rights and best interests are different things; lawyer income based on prolonging the dispute Mediation- 3 rd party listens and facilitates dialogue; Mediator does not decide; each side tells its story –Use I statements –Don’t be defensive –De-personalize the situation
Dispute Resolution Arbitration- both sides tell their story and arbitrator decides. Arbitrators are privately employed, 3 rd party (impartial) judges. Much faster and cheaper than litigation, usually binding (no appeals) Litigation- use of government run court system. Everything becomes public.
Dispute Resolution Negotiation/mediation –Focus on issues, not positions –Have decision-makers in the room –Keep emotions out of the discussion –Listen well –Don’t change mind after agreeing to the deal –Keep overall agreement give-and-take in mind –Do you homework- know what is reasonable