Here is an older blog that I think deserves a second look. Don may have written it in 2009, but the information is still relevant. – Justin
Failure to Communicate
Construction disputes have many ways of developing. One of the ways is a failure to communicate. I have seen disputes go to mediation, arbitration and/or court just because someone failed to communicate.
The communication failures include may sources, some of them quite innocent and some that are downright wrong. Some of the “innocent” failures in communication are the craft and staff people, working fast and furious on a project, which has “verbal” client directed changes in the field. No one writes down the proper contractual notice of a changed condition/extra cost, they just proceed with the work. The parties, generally speaking, allow that they will “settle up” at the end of the project. When it comes time to settle up though, the dispute arises; it could not have cost that much, it wasn’t done that way, etc. Oftentimes there are valid points in these comments. Compounding the problem, everyone has left the job and scattered to different projects.
On projects such as these it is imperative to keep good documentation from the craft, staff, and others on the project. Good documentation has many forms, not just notices to the other party. It can be daily logs, RFI’s and common document forms/formats on projects.
The other failure to communicate can be a significant problem. It is where one party in the process is lying to cover up or shift the blame for a problem. I have seen this happen often on projects with multiple prime contractors using a construction manager that is not managing the construction process. I have observed cases where they have lied to the owner to shift the delay blame to one or more of the contractors, when the reason was their failure to perform as a manager of the work. I have observed the construction manager blaming the contractor for obvious design deficiencies, when the construction manager has ties to, or is also the design firm, for the project. I have seen this to the extent that the construction manager “poisoned” the owner’s or contractor’s attitude towards the others so much so, that the only resolution was after the project completion.
On projects such as these it is even more imperative to get the problems documented and to take immediate actions to reduce the consequences of the lying. This documentation may take place with legal counsel and others involved during the course of the project. I want to emphasize the “reduce the consequences” because on projects with these conditions, there will be costly consequences for all parties, and settlement will likely not be until after the project has been completed for an extended period of time.