Lawyer Monthly Magazine - August 2019 Edition

What would you say are the top three things your clients should acknowledge in order to avoid disputes during their projects? The very first word that comes to my mind is ‘Contract’. Read, understand and administer your contract correctly. While studying for my MSc degree in Construction Law and Dispute Resolution at King’s College, London, one of the things I learnt, which has stayed with me since, was “The Contract is King”. Indeed, it is! Lack of practical understanding of the contract provisions, and most importantly, failure to apply specific processes and procedures are, in my opinion, the underlying causes of any big dispute. My advice is to always submit the written communications required by the contract, especially those that relate to a change in scope. Never hesitate to reply to communications highlighting any areas of disagreement. The other party to the contract might well be your life-long friend, but don’t fall into the trap of continuing to treat it as a friend for the purposes of the contract. Always maintain a professional and contractual relationship – after all, good dealings make good friends. I find it very unfortunate and frustrating when clients fail to apply, for example, the progress monitoring procedures prescribed in their contracts – a process that goes hand in hand with delay analysis. Failure to do so results in a lack of retrospective understanding of how the works were executed or the probable areas affected by delay, and in turn leads to disagreements. These disagreements can lead to disputes, which can escalate when referred to dispute resolution forums. Speaking with Maria Fisentzou, we learn how contracts and records are vital for companies to keep track of if they wish to avoid disputes. Read on below to find out more. This bringsme to the secondpiece of advice I would like to give – always maintain comprehensive contemporaneous records if you wish to avoid disputes. One might say I sound old fashioned, but “… the importance of records, the importance of records and the importance of records.” lesson that Max W. Abrahamson tried to teach us many years ago, is in reality yet to be comprehended in our highly educated and technologically advanced construction world. It iswitha senseof disappointment I am sharing this with you; to this day, I am faced, again and again, with disputes where records range from very limited to none at all! Even if they exist, they are often disorganised. Disputes can, more often than not, be resolved by reliance on records that have been kept during the life of the project. Records, their quality and extent, are of primary importance to any dispute avoidance model or dispute resolution process. You have asked me for three things. The third one is not based on any contractual or planning engineering or management principles we read in textbooks, but it is rather based on logic and common sense: communicate with the other party. Silence will most likely trigger a dispute. Ask yourself what the real issue is and aim to resolve it. Be transparent and initiate a dialogue. Most importantly deal with the problem before it transforms into an unmanageable beast. How? Be creative, brainstorm with your team and consider possible avenues for resolution. Do not be completely restrained by the contract, learn to sometimes look beyond the contractual procedures. Share thosepotential solutions with the other party. The party you have contracted with is not your enemy, ultimately you need its assistance to resolve the differences as much as it needs yours. What took you by surprise when you were first instructed as an Expert? Do you think any changes should be made, for the benefit of clients that are at dispute? No access to the construction team. This is what took me by surprise. This is what I believe should change for the benefit of our clients. Some instructing solicitors choose to act as the ‘middle-man’ between experts and a party to the dispute. I appreciate that there are legal and procedural reasons behind this approach but, if “a picture is worth a thousand words”, a one-hour discussion with the project’s participants (where possible) saves hours of searching for facts through project documentation. Interviewing the constrution team assists comprehension of the flow and progress of the works and prevents an analysis from being consumed by software complexity. It also provides confidence that the analysis is progressing in the right direction and acts as a ‘common-sense’ check of the results. Lastly, it is an invaluable help in uncovering evidence for the causes of delay. What is your preferred method for delay analysis? As an expert, I welcome the Society of Construction Law’s decision to move away from the ‘preferred method’ approach (Society of Construction Law Delay and Disruption Protocol, 2nd Ed., February 2017). In my opinion, delay analysts should not have a preferred method. I How to Avoid Construction Disputes DELAY EXPERT “ In my opinion, delay analysts should not have a preferred method. I do not have a preferred method. 52 WWW.LAWYER-MONTHLY.COM | AUG 2019 Expert Witness By Maria Fisentzou, Diales