Construction Administration - Evaluating Non-Conformance - Consider 3

4m 47s

In this ARE 5.0 Construction and Evaluation Exam Prep course you will learn about the topics covered in the ARE 5.0 CE exam division. A complete and comprehensive curriculum, this course will touch on each of the NCARB objectives for the ARE 5.0 Construction and Evaluation Exam.

Instructor Mike Newman will discuss issues related to bidding and negotiation processes, support of the construction process, and evaluation of completed projects.

When you are done with this course, you will have a thorough understanding of the content covered in the ARE 5.0 Construction and Evaluation Exam including construction contract execution, construction support services, payment request processing, and project closeout. 

So, when we're talking about dispute resolution, clearly issues of litigation and all that weigh heavily on people's minds, and you try really hard not to get into those situations and you try to make sure that your records are clear so that if you do get into those situations, you're sort of covered, that you have enough information and that you've made the right set of decisions that everything will be sort of okay in the end. But sometimes, let's look at this one example, while the contracts are there in part to protect you. That's one of the reasons you have a contract.

Partly it's there just to clarify what everybody's roles are and who's doing what and what the nature of the project is, but part of it is to protect you and to protect the other person in the contract if something goes wrong, that there's a clear process, that you can't just be sued for no reason, that there's a way that the contract talks about how a dispute would get resolved, right? So that you're not just sort of at the whim of some other person, that you actually have a process. That's what the contracts are gonna do for you. But if you have those contracts and the process of recording all of the meetings and the design changes and being responsible about responding in timely manner, sometimes not even all of that will save you.

So you can do everything right and still end up in litigation. It's just the nature of construction sometimes. Certain things just fall in a bad way and things go wrong. And so, you can actually have a bad situation even if you've tried to do everything as the best you can. So, what do you do in those situations?

What's the way to not have that happen? And many years ago I had a lawyer, a construction law specialist that was giving a presentation in one of my classes and was talking about how the contracts worked and was giving some examples and then was responding to one of the questions of the student. And the student had asked a sort of complicated question about, well, if this is happening and that's happening, who is responsible? And it was sort of this big, long, complicated thing. And what the lawyer said, which I thought was really clear and kind of brilliant, was, "My advice to you is just always try "to create a good working relationship "that is based on good communication." It's just as simple as that.

If you have a good working relationship and everybody's issues are clearly being stated and you understand their issues and everybody else understands their issues and those issues are being communicated clearly and everybody knows the process, they expect how it's going to work, you tell them what's going to happen and then that happens, you kind of make sure that everything is rolling along and that everybody is pleased to be part of the process because you have a good working relationship, that is going to take care of 90% of the issues that you have out on the field, that the vast majority of litigation and really problematic arbitration and mediation projects come from situations where there's just really bad blood, where there's people who are acting badly, they're not communicating well, the drawings are messy, the site was messy, the relationships weren't clear, that there wasn't a process that was clearly laid out for everybody so that they know where they fit in.

They understand what their role is. If things are sort of unclear and messy and just sort of unpleasant, well, then you are gonna be much faster to saying, "Hold on, no more, we're not gonna do it. "You owe us more money," or, "Stop right there, we don't like the construction.

"We don't like your quality of work," right? Those kinds of statements are gonna get said much faster if there's sort of a bad feeling on the site. If there's a good feeling on the site, if people are clear about what their roles are and people are happy to be there and there's a sense that we're all on the same team, trying to get this project done. In those situations, as cliched and ridiculous as that sounds, in those situations you are much less likely to have any litigation or even mediation type problems because you're able to work it out in the field, in the negotiation.

Everybody wants everybody else to succeed, right? That's an important type of situation. You want that situation. You're the one that can create that situation. So while bad things happen to good people, just because you have a good site and a good relationship and you've done the process right, doesn't mean you're not gonna fall into litigation. But it does mean that if you do all that right, if you've really kept everybody informed and you really kept the process rolling in the way that you said that it would go forward, if you are really clear about all of that, it's much less likely that you will fall into a problem like mediation or arbitration or litigation.

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From the course:
ARE 5.0 Construction & Evaluation Exam Prep

Duration: 11h

Author: Mike Newman