AIA Greenville hosted Chris Osborn, Assistant Professor of Law at the Charlotte School of Law, at its luncheon this month. His presentation was entitled, Why Can't We All Just Get Along - A New Way of Thinking about Construction Disputes (and Keeping Them out of Court).
The aim of the presentation was stated as follows in the July AIA Greenville luncheon invitation:
"Drawing on his extensive experience in litigating and mediating construction disputes, Professor Osborn's lively, interactive presentation is designed to equip architects to: (1) identify and understand the relational dynamics that underlie most construction disputes, (2) avoid unwittingly 'adding fuel to the fire,' and (3) where possible, help navigate the opposing parties in the right direction."1
Professor Osborn was certainly lively. He stated up front that he intended on his presentation being as much of a dialog as possible. The fact that he did not elicit more feedback from those gathered than he did was in no way due to a failure on his part to make the subject matter engaging. On the contrary, he drew out much more dialog than is common at similar AIA functions, the physical arrangement of which can tend to stifle audience participation.
He first sought to explain the common relational dynamics that are behind all construction disputes by comparing the agreement to design and build with a marriage. While being an analogy that drew unanimous initial chuckling from those gathered, it had the added virtue of being surprisingly accurate.
Both a successful marriage and a successful business relationship must involve commitment, flexibility, respect, honesty, humility, and healthy communication on the part of all its participants. Moreover, everyone ultimately wants the relationship to be a success.
On the other hand, construction fallout comes by way of the same sort of naive courtship, followed by promises - and sometimes actual ceremonies - and inevitable friction that occurs once a marriage is underway. The disputes can be traced to a similar lack of cooperation, failure to be aware of the inevitability of problems, and lack of communication.
Given the fact that disputes are highly likely, how does an architect make the best use of his power and expertise in solving such problems without making things worse?
Professor Osborn ultimately suggested that the architect view his role as that of counselor, a facilitator - and perhaps restorer - of the kind of communication that could have avoided the dispute in the first place. Since a counselor's focus is on root causes, this understanding of the architect's role has the benefit of serving both projects currently in dispute and avoiding disputes in future projects.
The four most common causes of construction-related disputes, in his experience, are as follows:
- Failure to keep complete and orderly records.
- Poor communication or a lack of communication.
- Divergent expectations.
- Differing approaches to conflict.
Professor Osborn's claim was that his law experience makes him an excellent resource in thinking through construction disputes. He made good on that claim, while delivering an engaging presentation that interacted positively with his audience. Based on what I heard and saw, I would highly recommend him as such a resource and as a lawyer in general.
And he would probably make a halfway decent marriage counselor as well!
Above All:"Do nothing from rivalry or conceit, but in humility count others more significant than yourselves. Let each of you look not only to his own interests, but also to the interests of others."2
- Paul, formerly Saul, of Tarsus, ancient Jewish scholar and expert in the Law
Did You Know...?According to A201 - General Conditions of the Contract for Construction, unless another individual is specifically designated, the architect serves in the role of "Initial Decision Maker" in most construction claims. A decision is required by the architect before further legal action can be pursued by owner or contractor. In other words, the architect, as counselor, has the first opportunity to resolve the dispute early and avoid a lawsuit!
Footnotes:(1) Taken from the homepage of http://www.aiagreenville.org as of July 11, 2013.
(2) Philippians 2:3-4 ESV
(3) A201-2007 Section 15.2.1.