Dispute Resolution: The Key to Avoiding Claims

March 1, 2002 · by Ava Abramowitz

In every book on negotiation, there should be a chapter on dispute resolution. Why? First, even the best negotiators in the world have times when the chemistry goes wrong; where one of the parties blows up, where a misspoken word escalates into a ful

In every book on negotiation, there should be a chapter on dispute resolution. Why? First, even the best negotiators in the world have times when the chemistry goes wrong; where one of the parties blows up, where a misspoken word escalates into a full-fledged dispute. They need to use their negotiation skills to try to restore balance to the situation.

Second, no matter how hard you have worked at being a competent, candid, and concerned professional (even with well-managed projects), differences among the parties exist and will create tension. When the constraints of time and budget take an additional toll, disputes inevitably arise. That so few construction disputes land in court is a credit to all the parties.

It is also proof that negotiation skills are critical assets to have in the design and construction setting.
Most probably, often and, perhaps, even daily, though see situations come most readily to mind:

Let’s discuss just one of them here--managing change--and you will see, that differences—and disputes—can be managed as long as you can recognize them for what they are: a rift in expectations between you and the other. These rifts usually result from a discrepancy between what a person (could be you, could be the other) wants or thinks should happen and what he or she knows or fears will happen.

“No-surprise design”, a basic premise of successful claims avoidance, requires you to keep your client up-to-date on the progress of the project. After all, it is the client’s project, not yours. So one of the very first things you will want to tell your client, preferably before the contract is signed, is that someday (you don’t know when), something (you don’t know what) is going to happen to cause your client and you—and depending on the timing of the change, the contractor—to regroup. Whatever that “change” is, it will alter the course of the project in some measurable way.

The point to bring home is there are myriad uncertainties inherent in the building process. When these uncertainties arise (and they will), they can challenge even the best of owners, architects, and contractors. Nothing you or the owner might do can stop them. You are going to want to tell the client all this before the contract is signed because there will be a greater chance the client will hear it as the truth and not a self-serving statement.

Now, while you can’t tell your client what change will reroute the course of the project, you can share some common attributes of these course-altering changes. And you can also tell your client you have a system to handle those changes—one that will keep the client’s needs at the forefront of your thinking and help the client keep their project on track. Then, at least, management of change can be predictable and a shared approach to it followed. Here is one such system:

Step 1: Inform the Client

The first step to managing change is to involve the client. After all, it is the client’s project—not yours—that is at risk. Moreover, informed clients are more likely to be both reasoned and reasonable. So if you are going to forestall a dispute, early action is a priority. The sole issue, then, is how you are going to tell your client about the change.

No client under stress wants their professional consultant to be stressed. A client wants a competent, candid, concerned professional focused unerringly on them. So, when a change has taken place (even one of seismic proportions), take it as the opportunity it is—the chance to prove to your client how wise they were to retain you as their architect.

Step 2: Clarify Client Expectations

Client expectations change during the course of the project, and nothing changes a client’s expectations faster than an unanticipated change. A client who tells you at the outset that quality is paramount may, when confronted with a changed circumstance, decide that budget or time is of greater importance. Before you act to deal with the change, you’ll need a reality check to find out whether (and, if so, how) your client is changing.

You’ll want to check in for several reasons. First, as a believer in no-surprise design, you are going to want to meet your client wherever they are. That way you can be sure that, whatever solution you come up with, there is a near certainty that your client will approve it. Second, your client needs to be assured that the project is theirs, the change notwithstanding. What better way to prove that than by asking the client, “What’s important to you now?” And, third, if the client's values have changed, you need to bring that out to verify that you heard correctly and to make the client aware that they have changed directions. With this new understanding, you can work together as a team to keep the project aligned and on track.

Step 3: Analyze Options

Armed with your client’s values, you can go out and analyze options, ever aware that each option involves trade-offs. Some options may be discarded immediately as too contrary to client wishes to be worthy of consideration; others may require the client to reassess priorities; still others may present close-to-perfect solutions to the immediate circumstance but engender even greater changes down the road. And all, more likely than not, will involve either time or money or both.

Whatever options you arrive at, it is always wise to try to develop at least three solid ones for your client’s consideration. Think about it: If you go forward with only one option and it gets accepted, who made the recommendation? You did. Who owns the idea? You do. So whose problem is it if anything goes wrong? Yours. A one-option process violates Rule Number One of no-surprise design: It’s the client’s project, not yours. With three solid options—each of which you can live with—the client has real choice and the chance to maintain control over the project.

Step 4: Present the Options

This step gives you the best opportunity you could want, not only to work with your client to put the project back on course, but also to demonstrate visibly the value of your architecture services. In reviewing the options with your client, you will want to relay all the pros and all the cons of each option in enough detail that your client truly understands the option and its short-and long-range implications for the client and the building.

That way your client can make a decent design and business decision; and you, by your conduct, can persuade them of your commitment to project success and your responsiveness to their needs. The more comfortable the client is with the option-developing process, (even if they have to struggle with making a decision), the more likely they are to be comfortable with you and your services.

Step 5: Document the Client’s Decision

The best way for a firm to ensure client commitment to a course of action is to remind clients of their decision and the fact that they were the decision maker. That means documentation. Even if your client tells you to decide among the options, their not deciding is a client decision and, as such, should be documented.

But we are assertive practitioners, and to us documentation is not a legal prerequisite. It is a communication opportunity to help you and the owner make reasonable decisions, thus keeping the project on track. If done well, documentation is also a marketing opportunity, a chance to prove to your client—without telling the client—how lucky they are to have you looking out for them.

Step 6: Update the Client

From time to time, and depending on the nature of the change and its scope and impact, you may want to remind the client of the change, their decision, and the progress being made in implementing it. This dialogue gives a client having second thoughts a chance to state them, which gives you the opportunity to reassure the client or to take corrective measures, if any are indicated.

Why does this process work for you and your clients?Remember, architects must exercise reasonable care, no more, no less. This process assures you and your client that you are exercising reason, recognizing problems, jumping on them right away, analyzing available options in light of client expectations, and then working with the client to select and implement the client’s chosen course of action. It also keeps you and your client on the same track, comfortably knowing that—-bumps notwithstanding—-the project is on track, too. And when you think about it, that’s what brings you the big bucks.

—Ava Abramowitz is the author of Essentials of Contract Negotiation, to be released by John Wiley & Sons in April.

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