Originally from Dispute Resolution Journal

While the effectiveness of a Dispute Review Board in preventing and resolving conflicts during a construction project is widely acknowledged within the industry, Edward Gluklick thinks that there is still a huge section of the industry that needs to be educated about the advantages of this ADR process. Gluklick relates some of his personal experiences dealing with disagreements that could easily have been resolved by an effective DRB. He shares his thoughts about the importance of appointing a DRB at the onset of any project.

Construction disputes are often a result of the terms and conditions of some contracts being so lopsided in favor of their maker and manifestly unfair in the assignment of responsibility and risk to other parties as to render them an invitation to have a dispute rather than an instrument to facilitate the accomplishment of the purpose for which the contracts have been drawn.

Some construction disputes stem from errors, contradictions, ambiguities, omissions in the plans or specifications. Others arise out of the failure to anticipate and provide for delays (due to weather, labor shortages, etc.,) when the time schedule for the project is determined.

Contract provisions are expected to be reasonable and fair to all parties. In some contracts that I’ve read, the provisions suggest that the reasonable and fair concept does not enjoy wide acceptance among contract drafters. In trying to protect the interests of their clients, contract writers (usually attorneys) tend to shift the liability for the cost of unknown circumstances to others.

To illustrate my point, here is what I found in a standard form of agreement between an owner and a construction manager that I recently reviewed:

The agreement was 16 pages long. It contained 11 articles, 14 pages of text, 31 subparagraphs, 87 sub-subparagraphs, and 53 sub-sub-subparagraphs. There were approximately 1,100 lines of text and 8,500 words. In addition, there were 11 pages of amendments and deletions to 63 of the aforementioned provisions.

This vision-testing language in small print was not, mind you, for someone that was going to do any of the work, but simply a manager—essentially a broker—of construction services who would help employ and manage the contractors that would do the work.

The contract’s thrust was to hold the construction manager responsible not only for the knowable but the unknowable as well. The idea of reasonableness and fairness all but vanished in the ocean of its verbiage.

If you grant that brevity limits loopholes and verbosity has the opposite effect, why, then, write everything that can be thought of into a contract? Is there nothing that can be left to trust or confidence that parties will meet their obligations?