Why Can't We All Just Get Along?

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:

1. Failure to keep complete and orderly records.
2. Poor communication or a lack of communication.
3. Divergent expectations.
4. Differing approaches to conflict.

In elaborating on these four root causes, Professor Osborn encouraged architects to focus at all times on the positive goals that all parties to both the design and construction agreements have.  Everyone involved in the project desires a successful completion.  Everyone also wishes to make money.  Finally, and perhaps often ignored, all parties want to build relationships that lead to future work.

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!

Practice Makes Perfect?

On my way out the door this morning, I happened to pass a neighbor I had not previously met coming back in from walking his dog.  We talked briefly, and, among other things, he quite naturally asked me what kind of work I do.

I told him, "I am in architecture."

He said, "So do you...actually build stuff?..."

How ironic, I thought to myself.  I just wrote an article dealing with this very thing.

I actually thought about telling him, "I design buildings," mostly because I did not feel I could sum up who an architect is before his eyes started to glaze over.  But I quickly realized that the only way to become skilled at answering these kinds of questions is not to descend into what would be, for me, rank hypocrisy, but to practice.

What I ended up telling him was, "An architect guides the owner through the process of designing the building, bidding it out to builders or negotiating with a builder the owner wants to use, and constructing the building.  So during construction, an architect's job is to make sure the building is being built according to plan."

Not too bad.  A little long, perhaps.  Maybe next time I will be able to touch on the "Protect" part of the "Guide and Protect" equation before my time expires.

I think my rambling summary achieved a part of its purpose, though, because my neighbor said, I believe genuinely, "That sounds really interesting.  It sounds like you have to know a lot."

Yeah, I thought, including how to describe our own purpose.

Above All:

"He who observes the wind will not sow,
      and he who regards the clouds will not reap." ¹
 - "The Preacher," ancient king of Israel, who, although his identity is disputed, clearly tried everything.

Did You Know...?

The architect's responsibilities to the owner are laid out in the standard Owner-Architect Agreement form (B101), published by the American Institute of Architects (AIA)?  In other words, using the AIA standard agreement helps the owner understand exactly what he is paying the architect to do, from beginning to end, thereby avoiding unnecessary disputes!

I'm Not the Only One

In case you thought I was the only nerd person that is concerned about things like contracts, I offer an article for your consideration.

Bob Borson, over at his blog, Life of an Architect, has written an article outlining the many approaches to agreements between design professionals and their clients.  He concisely describes them and makes a case for their comparative strengths and weaknesses.
Here is part of what he has to say about the importance of solid agreements:

"A properly prepared legal agreement between owner and architect will clearly communicate a project’s terms and conditions, determine responsibilities of each party and set expectations for schedule and payment for services. The most successful architectural projects are those where open lines of communication are established, and trust and respect are mutually granted."

I wholeheartedly agree.

You can read the entirety of the article here.  In spite of the blog's title, the article is written for lay readership; nothing too technical.  I would recommend that anyone seeking to undertake a building project read through some of his resources first.

First Things First

I have been in the architectural profession long enough now to realize that, for most people - including the building owners for whom we work - a building project is a complete mystery.  How can three different entities - the owner, the architect, and the contractor (the builder) - each with their own assumptions, interests, ways of working, and means of income, come together to produce a functional and beautiful building?

The bad news is that there is no perfect process, chiseled in stone and kept in a vault for eyes-only access, of designing, bidding, and constructing a building.  Period.  Every building project is different, which is why anyone initiating a building project needs the knowledge and experience that a licensed architect brings to the table.  But is the building owner at the mercy of the limited experience of that one architect who acts as his agent?

Actually, no.

The good news is that the American Institute of Architects has worked with building owners and general contractors nationwide to produce a document called A201 - General Conditions of the Contract for Construction.  It was first produced in 1911 as a revision to the highly successful Uniform Contract published in 1888.¹  It has been revised approximately every ten years since then.

On the surface, it might seem like one more stack of paper, filled with legalese, meant to keep lawyers in business.  Practically, however, it provides the construction industry - and the unsuspecting owners who walk into it - with clearly defined standards for how the owner, the architect, and the contractor are to cooperate in the common pursuit of that functional and beautiful building.  It contains time-tested guidelines for...

• ...how to divide responsibility in the most sensible and equitable way possible.
• ...what to do if something goes wrong, whether someone is at fault or not.
• ...how to protect the financial interests of everyone involved.

If you are an owner - our lingo for anyone who initiates a building project - or a potential owner, you should know that A201 is nowhere near as simple as I am attempting to make it, to say nothing of the complexity of the contracts you will hold, the drawings, the specifications, bidding documents, change orders, and permits.   But if you would take a word from me, you will be sure to see that A201 is incorporated into the contract documents.  It is over one hundred twenty years worth of wisdom and experience that you should not do without.
 

Above all:

"Get wisdom, and whatever you get, get insight."²..."How much better to get wisdom than gold!  To get understanding is to be chosen rather than silver."³
 - Solomon, ancient king of Israel and experienced building owner

Did you know:

Architects are licensed in the state in which they practice.  State law requires that drawings and specifications be prepared and sealed by a licensed architect for most new construction and renovation.  In other words, state law recognizes how important architects are!