How to Avoid and Resolve Disputes over Delays and Disruptions - 5

* The unfortunate truth is everyone tends to distrust schedule
information that a self-interested party has provided.
* If the parties accept this option, they should also direct
and enable the neutral periodically to review the schedule,
and specifically, to observe (1) whether it accurately represents the progress in the field, (2) whether the parties are
maintaining it in the manner necessary to support a delay
analysis, and (3) whether it is being used to "set up" a claim.
* If the parties accept this option, they will also need to
address the confidentiality of any baseline or assessment that the scheduler provides. While this assessment
would not be binding, it may - depending on what the
parties decide - be admissible as evidence in subsequent
proceedings.
* The benefits of a neutral project scheduler would accrue
to all of the participants in the project, and for that reason,
it would be fair and logical for the project itself to bear
the cost.
3. If the parties are unable to agree on a neutral "project scheduler," another option is to seek agreement on the methodology that the contractor will use to create and maintain the
schedule and that all parties will use (1) to establish a reliable
baseline and (2) promptly (on an expedited basis) assess the
impact that an event will have on the project schedule.
* An advance agreement on the methodology would have
the added benefit of clarifying the records that each party
should expect the other to create and retain, including the
level of detail, the integration of impact activities and the
like. The parties would, however, need to guard against
any temptation to "hijack" the recordkeeping process, in
a result-oriented effort to demonstrate or refute delays, for
that would render the schedule unfit for its intended use
as a construction planning tool.
* The parties should select a methodology and design any
related procedures to enable them to resolve any differences prior to the next monthly update of the schedule
because differences will otherwise pile up, from month
to month, and become unmanageable.
* Understanding that some disagreements relating to the
schedule may remain unresolved at the end of the project,
the contractor can also seek agreement (1) on an after-thefact methodology (and/or order of preference for different
methodologies) that the parties will use to resolve any
remaining disagreements and (2) on a neutral scheduling
expert to apply that methodology to the relevant facts.
4. Prior to and possibly in lieu of more traditional mediation,
the contractor can also seek agreement to engage a neutral
reviewer to whom the parties can turn for a non-binding review of any claims for delay and/or disruption. The
engagement could be limited to entitlement or encompass
both entitlement and the costs that the delay or disruption
required the contractor to incur. This approach can be
particularly effective if both parties are committed to seek
a negotiated resolution of the matter.

* If the parties take this approach, they will want to ensure
that the reviewer is qualified to do the job, meaning that
he or she has the expertise in construction law and the
prior experience with claims for delay and/or disruption
to identify and properly analyze the relevant facts.
* The parties will also have to decide whether to engage a
neutral expert to advise and assist the reviewer.
* The parties will also need to establish the ground rules for
the review, such as the requirements for notice, the timing and scope of an exchange of information, a schedule
for briefing the issues, and the parameters of an informal
hearing. Typically, the parties do require the reviewer to
provide a written opinion.
* The contractor may also want to seek agreement on followup meetings that will provide an opportunity for the parties
to discuss any written opinion, and if possible, reach a final
agreement resolving all differences.
* While the opinion would be advisory, it might - depending
on what the parties decide - be admissible as evidence in
subsequent proceedings. If the opinion is admissible, it will
carry more weight and it will be more likely to induce the
parties to settle their differences.
* Like the benefits of a neutral project scheduler, the benefits
of a neutral reviewer would accrue to all of the participants
in the project, and for that reason, it would be fair and logical for the project itself to bear the cost.
* If set up properly, the evaluation and any reports could
remain confidential and between the parties.

Both formal and informal agreements
reached at any time - including
agreements that the parties reach
only after work has started or a
dispute has arisen - can be helpful.
5. If the contract does not already require the parties to mediate
any claims for delay and/or disruption, as an express condition
precedent to either arbitration or litigation, the contractor can
also seek an agreement to that effect.
* If they take this approach, the parties will have to decide
whether to limit their agreement to such claims or expand
it to reach and include other claims and potential disagreements. One option is to reach and include all disagreements
that exceed a certain amount.
* If they take this approach, and it is possible for them to do so,
the parties should also identify and preselect, in advance of
any disagreement, several mediators who would be acceptable to both parties. If that is not possible, the parties should
at least agree on a procedure for selecting a mediator at a
later point in time.
* If they take this approach, and it is possible for them to do so,
the parties should also identify and preselect, in advance of
any disagreement, scheduling and disruption experts acceptable to both parties and available, if needed, to assist the



Table of Contents for the Digital Edition of How to Avoid and Resolve Disputes over Delays and Disruptions

How to Avoid and Resolve Disputes over Delays and Disruptions - Intro
How to Avoid and Resolve Disputes over Delays and Disruptions - 1
How to Avoid and Resolve Disputes over Delays and Disruptions - 2
How to Avoid and Resolve Disputes over Delays and Disruptions - 3
How to Avoid and Resolve Disputes over Delays and Disruptions - 4
How to Avoid and Resolve Disputes over Delays and Disruptions - 5
How to Avoid and Resolve Disputes over Delays and Disruptions - 6
How to Avoid and Resolve Disputes over Delays and Disruptions - 7
How to Avoid and Resolve Disputes over Delays and Disruptions - 8
How to Avoid and Resolve Disputes over Delays and Disruptions - 9
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