We have been advising clients and the entire community in our writing and speeches to prepare daily diaries of the day's (redundant on purpose) events. We have said it is the duty of the project and contract managers to go home at night and write up everything that happened that day. Well guess what? The recent Arcadis Disputes Report 2023 describes the complexities of current construction projects and emphasizes attention to detail in risk analysis, schedule preparation, and careful detailed project monitoring. Bingo! Diaries!
We recommend reading the Disputes Report as there is a lot of red meat on the current status of dispute resolution, and of predictions for a brighter future of dispute resolution.
There is a new premium on early resolution. But you cannot resolve what you cannot see and have not thoroughly investigated and recorded. More and more, the facts control the outcome and the side that is better prepared on the facts, wins. The trend is toward scrutiny of detailed evidence and early reliance on the resolution assistance of mediation before a independent neutral.
We, in the federal sector, are lucky. Members of the ASBCA and the CBCA stand by gratis to act as mediators. Just write the respective chairpersons and ask.
And don't forget, the contractor in the public sector undertakes unacceptable risks of stopping work or walking off the job to make a point. The cardinal change rule is difficult to use as a sword or a shield. Read our other posts.
Since the facts drive the result, the record of facts controls the outcome of negotiations and mediations. CEOs, task your project and contract managers to keep a diary. Competent project and contract mangers, keep a diary. Today's technological advantages make doing it easier. A record of contemporaneous reporting trumps witness recollections 3 or more years later.
bill@spriggslawgroup.com
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