Compiling of project documents is one of the earliest and top priority actions that need to take place when a failure occurs. The primary sources for these documents are obviously the design and engineering consultants, the contractor(s), and the owner. In addition to the contract documents (construction drawings: architectural, structural, electrical, etc., and specifications), the principal documents that are typically required to conduct a preliminary evaluation include the following:

It is important for an investigative team, once it has been commissioned, to investigate the defect, system failure or collapse, appoints a person to be in charge and who immediately makes efforts to conduct interviews with eyewitnesses and other persons such as project personnel who may be able to provide useful information regarding the investigation and which may assist in focusing and determining the probable causes of the failure. It is important to conduct these interviews as soon after a reported incident as possible but especially prior to its “contamination” and while the recollection is still fresh. The specific information that is sought from interviewees depends largely on the type of failure, the circumstances of the failure, and the interviewee’s knowledge and expertise.

It is in the interests of all parties during an investigation for experts to cooperate with each other and with whom there may be common interests. It allows them to pool resources and avoid unnecessary duplication of effort. Other areas of potential collaboration include possible destructive testing, identification of debris and relevant components, as well as the possible sharing of interview information. But while sharing basic information and fostering cooperation are often desirable and may greatly facilitate an investigation, nevertheless, in situations where there is a possibility of litigation, the client or the client’s attorney should always be consulted to ensure that any sharing of information does not inadvertently compromise the client’s interests.

From the initial investigation of possible failure scenarios and possible contributing factors, a preliminary evaluation should emerge. Once the input of the various consultants, eyewitnesses, and staff members are taken into consideration and recorded, there is a need for a follow-up by conducting a preliminary structural analyses and tests to try and determine the viability of initial hypotheses as well as identifying other possibilities that may have triggered the failure such as excessive occupancy loading or by environmental factors (e.g., excessive snow load on roof), strong winds, etc., which exceed the building envelope’s design capabilities to withstand such factors.

One of the primary purposes of a construction contract is to allocate risk and define the respective responsibilities of the parties. And lawsuits based on negligence are today considered the most common kind of civil action in the area of tort law. It occurs when a person fails to exercise the standard of care that a reasonable, prudent person would have exercised in a similar circumstance (this is sometimes called a lack of “due care”). Very often the bottom line in assigning culpability for failure issues or construction disputes is narrowed down to a result of negligence, ignorance, or incompetence. In fact, property developers and project owners every now and then argue that a construction contractor or the contractor’s principles was negligent in the execution of the construction work. This argument may be a result of the owner’s failure to protect or preserve his/her rights under the contract. Tort law in the United States is generally defined by state rather than federal law. Negligence cases often get to federal court through diversity jurisdiction, even though the case will typically be tried with some state’s negligence law as the basis for decision. It should also be noted that the state law of negligence is usually common law rather than statutory law, with the effect that what is determined to be a lack of due care will differ from one jurisdiction to another. Moreover, in a negligence suit, the plaintiff has the burden of proving that the defendant failed to act as a reasonable person would have acted under the circumstances. The court will be expected to instruct the jury as to the standard of conduct required of the defendant.

The doctrine of reasonable standard of care basically implies that one who undertakes to render services in the practice of a profession is required to exercise the skill and knowledge that members of that profession (whether architect, engineer, contractor, etc.) normally possess. Here, design professionals often cite a California Supreme Court case with respect to the standard of care expected of professionals. The court in that case essentially noted that services of experts are sought because of their special skill. They have a duty to exercise the ordinary skill and competence of members of their profession, and a failure to discharge that duty will subject them to liability for negligence. But it added that those who hire such professionals should not expect infallibility but can expect only reasonable care and competence. For example, with respect to the design professional, key points to remember relating to Standard of Care include the following:

Employing expert witnesses in arbitration hearings, particularly related to construction litigation, continues to gather pace. This is important because the investigation and testimony of an expert consultant/witness can have an enormous impact on reputations and people’s livelihoods even though the service is essentially required to determine the cause, assign responsibility, and prevent the repeat occurrence of a failure. For this, and other reasons, it is really imperative that forensic experts understand the accepted standards that professional consultants and contractors are expected to meet. For example, is the Standard of Care bar raised when the designer/consultant or contractor is a LEED AP? The fact that a consultant makes a mistake, and that mistake causes injury or damage, is normally insufficient to lead to professional liability on the part of the consultant. For there to be professional liability, it must be proven that the services offered were professionally negligent, meaning that they fell below the expected standard of care of the profession. While it may be obvious that design professionals today have a duty to practise sustainable design, that professional standard of care may or may not rise to the level of promising the achievement of, e.g., a certain LEED certification level. R.T. Ratay, a forensic engineer expert defines the standard of care simply as being, “That level and quality of service ordinarily provided by other normally competent practitioners of good standing in that field, when providing similar services with reasonable diligence and best judgment in the same locality at the same time and under similar circumstances.” To do this, qualified experts are brought in and required to testify in American courts to the standard of care that was applicable to the case on trial; these qualified experts are also required to testify to the professional’s performance as measured by that applicable standard of care. Building contractors are exempted from applying the principle of standard of care because they are not deemed to be “professionals” in the sense of making independent evaluations and judgments based on learning and skill. However, they are nevertheless held to a “Duty to Perform,” which basically means that they must strictly adhere to the plans, specifications, contract documents, and provisions of their contracts. Also, although the expert is generally hired by one of the parties, it is nevertheless important that he or she always remains objective and neutral.

Arbitration is becoming the favored practice for resolving construction disputes because for many, arbitration is considered to be a low cost and time-efficient alternative to costly court litigation. It is also one of the oldest and more common forms of ADR of which there are two basic types—binding (which means the parties must follow the arbitrator’s decision and courts will enforce it) and nonbinding arbitration (which means that either party is free to reject the arbitrator’s decision and take the dispute to court, as if the arbitration had never taken place). And although arbitration includes participation of the parties on a typically voluntary basis, it can only be legally enforceable and binding if agreed by the parties beforehand. To become binding by the arbitrator’s decision, a separate written agreement needs to be in place certifying that the arbitration agreement has been read and understood and agrees to be bound by it. An example of a simple arbitration clause is, “All claims and disputes arising from or in connection with this Contract are to be settled by binding arbitration in the state of (insert state in which parties agree to arbitrate) or another location mutually agreed upon by the parties. The arbitral award is final and binding upon both parties and may be confirmed in a court of competent jurisdiction.” Traditionally, the AAA has been the forum for resolution of such cases, and it has developed detailed rules governing the arbitration process. Copies of the American Arbitration Association Dispute Resolution Procedures governing arbitration and mediation, as amended through January 1, 2003, may be obtained from the American Arbitration Association, located at 133 Federal Street, Boston, MA 02110, as well as from the AAA’s website (www.adr.org).

This is another ADR nonbinding process by which an impartial person, the mediator, facilitates the negotiation process between the parties to a dispute to promote reconciliation, settlement, or understanding among them. The main objective of mediation therefore is to assist the parties in voluntarily reaching an acceptable resolution of issues in dispute with the aid of the mediator who is a neutral third party. The mediator’s role is solely advisory, in that the mediator may offer suggestions on ways of resolving the dispute, but in no way should he or she try and impose a resolution on the parties. Mediation proceedings are confidential and private. Also there are no hard and fast rules of procedure for the mediation process, and this allows the mediator and the parties to seek out the most effective and efficient method to resolve the conflict. Mediation has several important advantages and fewer disadvantages than the other options which is why it is gaining popularity as the ADR method of choice for resolving disputes. Among the advantages of mediation are lower costs; efficiency; and the ability to preserve business relationships, potential speed, and flexibility in resolving the dispute.

Negotiation is a time-proven approach to resolving disputes between feuding parties through discussions and mutual agreements. In an unassisted negotiation, the parties attempt to reach a settlement without involvement of outside parties. This process is essentially voluntary and there is no third party to facilitate the resolution process or imposes a resolution. This informal process is one of the most fundamental methods of dispute resolution, offering parties maximum control over the process. But as with any endeavor, negotiation can be effective or unproductive. To be successful, the parties should be from the outset to identify issues upon which they differ and identify possible settlement options. The parties should also disclose their respective needs and interests to enable them to negotiate acceptable terms and conditions of agreement. The most appropriate and successful approaches in negotiations are those in which the negotiators conduct discussions that focus on the common interests of the parties and not the traditional approach of focusing on the parties’ relative power or positions. A construction industry negotiation variant is the “step negotiation” procedure, which is a multitiered process that is sometimes used when the information that the parties have in place is, e.g., incomplete, or as a mechanism to break a deadlock. But while no specific mechanism or formula specifically requires the institution of settlement negotiations, many contracts today contain a “good faith” negotiation clause, requiring any dissatisfaction with performance under a contract to be communicated to the other party, usually in writing. The final objective of negotiations is that each party ends up in a better position than if they had not negotiated.