Construction Process

1
Construction Process

• Public- statutory control of process
• Private- market control of process
• Traditional system

Owner
Contract for design
Contract for construction
Arch/Engr
Contractor
Non-contractual relationship
2
Construction Process

• Process is influenced by
• Delivery system used
• Project stakeholder map complexity
• Financing
• Location
• Unions
• Services
• sophistication
• Political climate and support for growth

3
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

4
Construction Process
Indirect stakeholders Neighborhoods Community
groups Environmental groups Political leaders

• Project stakeholder maps

finances
legal counsel
Owner
marketing
developer
consultants
Designer
architects
engineers (M,S,E,C)
interiors
unions
subcontractors
Builder
labor providers
inspectors
5
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 (dont punish)
• Dont get fixated on small issues
• Understand and listen well
• Learn that different is not wrong or bad
• Avoid standing on principle- pick your battles

6
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

7
Dispute Resolution

• Staying out of court should be the ultimate goal-
  use alternative dispute resolution
• Avoidance- ignore the conflict, dont talk to
  other party usually leads to bigger problem
• Intimidation- threaten the other party- dont
  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

8
Dispute Resolution

• Attorney assisted negotiation- legal rights and
  best interests are different things lawyer
  income based on prolonging the dispute
• Mediation- 3rd party listens and facilitates
  dialogue Mediator does not decide each side
  tells its story
• Use I statements
• Dont be defensive
• De-personalize the situation

9
Dispute Resolution

• Arbitration- both sides tell their story and
  arbitrator decides. Arbitrators are privately
  employed, 3rd party (impartial) judges. Much
  faster and cheaper than litigation, usually
  binding (no appeals)
• Litigation- use of government run court system.
  Everything becomes public.

10
Dispute Resolution

• Negotiation/mediation
• Focus on issues, not positions
• Have decision-makers in the room
• Keep emotions out of the discussion
• Listen well
• Dont change mind after agreeing to the deal
• Keep overall agreement give-and-take in mind
• Do you homework- know what is reasonable