Engineering Inc - July/August 2018 - 37

are key to successfully resolving these types of
disagreements. It's useful in such situations to
know your counterpart's viewpoint, drivers and
limitations of authority, and to understand what
motivates their superiors concerning the claim."
Sometimes just talking it out provides a solution. "One thing the parties need to do before
something becomes a dispute or a claim is
brainstorm possible solutions," Bates says. "Keep
going until you've reached a consensus."
In some cases this will require the use of
mediators who can help firms and clients reach
agreements before the issue ends in disputes and
claims. "Mediation is cheaper than arbitration
or a claim," Bates says.
PREVENT ESCALATION

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Firms can take other steps to prevent
disagreements from becoming claims.
"Insurers like to see that the firm uses preclaim assistance," says Nancy Rigassio, executive
claims counsel at XL Catlin, a company providing
professional liability insurance. "Most professional
liability insurers provide this service as a loss
prevention feature."
The use of loss prevention will not involve
payment out of the insured's deductible, and
expenses authorized by the insurer are not
allocated against the policy, Rigassio says.
"Firms that invest in educating their engineers
on risk management practices have good
procedures in place so that its project managers
can identify warning signs early on and effectively
"Having an open dialogue with
resolve the issues before they develop into a
claim," Rigassio says.
the client is beneficial for aligning
Firms that put in place decision-making
the expectations of the client and
procedures for client selection, contract
engineer."
negotiations and authority to bind the firm
in a contract find that they can effectively mitigate
ERIN AUSTIN
disputes before they become claims, Rigassio says.
DAVID EVANS AND ASSOCIATES, INC.
"And there are also lessons learned after the
firm experienced a claim," Rigassio says. "The
sional services agreement does not otherwise bind the engineer
firms that evaluate internal practices that may have contributed
to an elevated standard of care," O'Beirne says.
to a claim, the nontechnical factors that we call risk drivers, in
When a disagreement turns into a claim or a dispute, firms
addition to the technical factors, are the ones who learn from the
can use effective conflict resolution strategies to try to solve the
experience and minimize the risk of another claim."
problem.
Engineering firms are also likely to experience a professional
Regarding disagreements between an engineer and its client,
negligence claim at some point, Rigassio says. "It is not a
most standard professional services agreements, such as those by reflection of the quality of your services, but the way we resolve
the Engineers Joint Contract Documents Committee (EJCDC)
disputes," she says. "Notify your professional liability insurer
do not establish a formal, defined process for the submittal of
of the claim. Claims are going to happen, but how you interact
claims, although EJCDC's owner-design professional agreewith your professional liability insurer can reflect positively on
ments have optional provisions for dispute resolution, O'Beirne
your firm."
says. "Often, the process will eventually be resolved via a formal
There's much at stake. Disputes and claims can affect not only a
or informal mediation process," O'Beirne added.
firm's bottom-line profit on a project, but its reputation as well.
"Thus, claims against the engineer are left to negotiation
"Most design professional teams serve clients in a relatively
in good faith," O'Beirne says. "Relationships with the client
limited geographic area and they serve a certain type of client,"
JULY / AUGUST 2018

ENGINEERING INC.

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