Disputes are time-consuming and costly. In the next article in our Back to Basics series, we set out some practical tips on straightforward steps you can take to help minimise your exposure to disputes and claims.
1. It's good to talk...
Keep the lines of communication open. If you are unable to respond immediately to a request, consider sending a holding response. Not everyone will have the answer at their fingertips and quite often just acknowledging that you have received the request and that you are investigating this further will be sufficient to avoid issues escalating. If a specific timeframe has not been agreed then the requirement will be to respond within a reasonable time.
If you are working within a team, stay connected. Claims can arise as a result of poor internal communication and co-ordination resulting in inconsistent approaches, failure to respond to clients' requests, duplication, items of work getting missed and so on.
2. Use your diary:
Construction contracts invariably have certain timescales attached to them. These timescales can relate to payment, completion of the works or can even be as simple as providing certain contract documents to the other party by a certain date. Diarising key dates is an easy way of keeping track of these critical events and getting timing right. Be cautious - you might assume that being acutely proactive and doing something early would be advantageous; this is not always the case - see our recent insight, Payment - sometimes it pays to be late, not early on this point.
Make life easier for yourself by setting up calendar reminders to review key issues, rather than trying to remember to do so - when the pressure builds, it's often these types of activities that fall by the wayside. Possible examples of reminders include:
- a weekly reminder to review progress against contractual milestones
- diarising dates by which eg payment notices have to be sent
- when you have asked someone else to complete a task, setting a diary reminder to yourself on the appropriate day to check whether the task has actually been completed.
3. Document trackers
If your company does not use sophisticated efiling software, then consider implementing a robust document tracker system using a spreadsheet whereby incoming mail is logged with reference to the date of the letter, sender, recipient, subject, location of where it is filed and other relevant fields such as deadlines and action (ie who is responsible for acting on the email/letter etc). A clear internal audit trail will help to prevent items being "overlooked" and will to establish effective operational processes and procedures within your team.
4. Make an early investment of time
At the beginning of a project, set up a list of key organisations/individuals, together with their roles and contact details and keep it updated - this will save you time going forward and will prove invaluable if a crisis arises.
Another simple time-saver is collating a folder (physical or electronic) at the outset of the most significant documents and agreements relating to your project so that they are easily accessible when you need them. If you had lawyers involved to negotiate a project then ask them to provide a 'bible' of the signed documents on a CD for you.
Know what your obligations are:
Make time to understand your firm's role in the project and the duties that go with it - this will ensure you are better equipped to fulfil your particular part in that role. It can also help you to avoid overstepping your agreement and the risk of assuming the partial or entire responsibility for a third party's obligations. Managing the contract is key - your contract should be the first document you pick up when faced with a query as this will usually hold the answer.
Be aware of significant insurance requirements:
This may sound very specific, but with good reason, as insurers are involved in some way in many if not most construction disputes.
Make sure you are properly briefed for your role - by way of example, if your professional indemnity policy doesn't cover you for a fitness for purpose obligation, then don't agree to it (unless the commercial risk of non-insurance is acknowledged and agreed); if the relevant policy says not to settle disputes without the agreement of insurers, then seek that agreement before doing a deal.
There are many more examples but the point is clear: don't jeopardise insurance cover as a result of simply not knowing what has been agreed.
5. Respect the power of technology
Technology is brilliant and life-changing (for those of us who remember life before the internet and mobile!) but needs to be handled with care. Disputes can potentially be escalated and liabilities assumed by the touch of a button so be cautious and keep a particular eye on default settings and automatic reactions including:
- pressing Reply to All on an outgoing email rather than just Reply
- copying in all parties to every email just because that's what you always do
- default automatic "field-fillers" for email addresses (you start to type the name and it is automatically completed for you) - you can end up sending a confidential email to the wrong person entirely.
6. Keep notes
We have all been in meetings where we think we have agreed something and then a few days/weeks later it is clear that your version of events differs to others' but nothing has been documented. Agendas, action lists and, when appropriate, full minutes with dates and times can help to not only focus people on the issues to be addressed but serve as a good tool to document what was said and when. Clear communication, documented and shared will help to ensure everyone is on the same page and to keep disagreements to a minimum.
Keep contemporaneous notes of key conversations (by phone, text or in person) to include the date, time and a record of what was said by each party - at the least, they will provide you with an accurate record of the discussion and such notes can carry significant weight if a dispute arises. One easy way of doing this is just to send yourself an email: eg "Spoke to Homer Simpson of Barts Ltd at 1420 today about........He will get back to me about the doughnut........".
Focus and Simplicity.....
Steve Jobs famously said that one of his mantras was "focus and simplicity. Simple can be harder than complex....". Well, yes it can, partly because when you are under pressure, the "everyday" tasks sometimes get ignored; hopefully some of these straightforward tips can reduce your risks.