Enhancing the success of DRBs Oct 2008
At the annual meeting of the Dispute Resolution Board Foundation in Washington DC in early October, Bill Edgerton, Principal and President, Jacobs Associates, San Francisco, USA presented these comments on the enhancement of the DRB process. See also in the TunnelTalk archive 'DRBs - Knowing and playing by the rules' and join the discussion via the Feedback facility at the end of this article.
- During my career I have spent a lot of time involved on dispute resolution, both as a contractor, as an expert witness, and on behalf of the owner as an engineer/construction manager. I’ve managed this both within and without DRBs.
William W. Edgerton, Jacobs Associates
- Without a DRB, way too much energy is expended on arriving at a result -wheel spinning, and resources that could be put to better use elsewhere. I suspect most of you in this room would agree with me.
- So, I do believe in the DRB concept because it represents the best way I know of to reduce all this wasted energy.
- But I do have some recommendations for better use of DRBs and since this is an equal opportunity speech, I have some advice for all three parties to a DRB: the Owner, Contractor, and the DRB guys.
- Owners: If the objective is to avoid and/or settle disputes more effectively, then you must look at the DRB as a method to facilitate the settling of disputes.
(a) During contract preparation, you must not think of it as another contract provision that can give you a leg up on the contractor when he files a claim. You must not ‘stack the deck’ in the DRB spec by
• limiting the types of disputes that can come before the DRB
• delaying the DRB review and thus making the DRB a ‘claims review’ board, or
• restricting the use of the opinions in any subsequent litigation.
- (b) During construction, you must put your ‘Partnering’ hat on, and use the DRB to help achieve a settlement rather than expect it to support your position. One of the ways this can go awry is to bring in people who have not ‘bought into’ the partnering concept (such as attorneys, claims consultants). They have their own objectives and if you need their help, have them attend the partnering sessions and buy into the process.
- Contractors: You contractors must do two things to minimize contract disputes:
- (a) Get enough money on the job to build it; given the terms in the contract; not what you think the terms of the contract should be, or what you think you can talk the owner into after the award.
- (b) When you see a contract that reads like the Owner thinks the contractor is a crook, don’t bid the job. You’ll be much better off by having your competition fighting with that owner and his attitude while you’re pursuing better opportunities. (Owners. Listen to that advice too.)
- DRB members: To facilitate the parties’ settlement:
- (a) Read the contract. Know what it says, not what you think it should say. Sometimes, despite the engineer’s excellence at drafting (pause for laughs) some ambiguity can creep in, forcing you to put yourself in the position of trying to determine what a reasonable bidder would have assumed at bid time. But simply throwing out a part of the contract because you don’t think it’s fair or it’s not how you would have done it, does the whole DRB industry a disservice.
- (b) Write your recommendations so that it’s clear and indicates that you have considered all the facts and all the contract language. The single thing that can be improved in our business, to help settle more disputes, is for you to do a better job of writing your recommendations. They must show reasoned logic, taking into account all the arguments from each of the parties. Your objective shouldn’t be to split the baby. It should be to get the right answer. And if the right answer is that one party is 100% right, and the other 100% wrong, then splitting the recommendation is the wrong answer.
- As an owner, or a contractor, or a DRB person, you can’t enhance the success of DRBs by yourself. But you can do your part. I would really like to see the DRB process grow, but we all need to modify some of our behaviors to make that happen.
Bill Edgerton, Principal and President, Jacobs Associates, San Francisco, USA
- DRB's - knowing and playing by the rules - TunnelTalk, Aug 2008
DRBF annual meeting agenda