By Richard Reizen and Patrick Johnson of Gould & Ratner LLP
In the iconic scene from the classic movie Cool Hand Luke, the role played by character actor Strother Martin famously complains to the character played by Paul Newman: “What we’ve got here, is failure to communicate.” Just like the consequences faced by Newman’s character for that failure, the consequences of a failure to communicate on a construction project can also be severe. Ineffective project communication can lead to project delays, poor work, increased costs, misunderstandings, and general unhappiness. On the other hand, clear and concise communications on a project will lead to a collaborative team effort, all while reducing the chances for errors and problems.
This article will offer some common sense, tried-and-true practices for improving project communications.
Rules for Good Project Communication
1. Communicate in Writing When Possible
While the contract will typically mandate that certain communications, including change order requests, be in writing, it is good practice to communicate all important issues in writing. The reason is obvious: there is less risk of a misunderstanding. Even well-meaning people can misunderstand and misremember oral communications, especially if significant time has lapsed. If that happens, there is often no opportunity to correct the misunderstanding before an error or dispute occurs. Moreover, in a subsequent arbitration or litigation matter, the trier of fact is left to make a determination based on the parties’ conflicting recalls. On the other hand, if a communication is made in writing, the parties have an opportunity to re-review, clarify, and fix any disagreements as to what was said, reducing the risk of a future dispute. While parties to a project sometimes express concern that writings make the relationship too formal, we have found that, if the tone of a written communication is not hostile or adversarial in nature, having a written communication leads to the best outcome.
2. Communication Should be Timely
Because construction projects are fast moving and follow critical paths, and because construction is difficult to undo after it is performed, it is important to raise concerns and respond in real time. Delays in communicating can be fatal. Additionally, ensuring that communications are directed to the correct individual from the onset in a prompt fashion is equally important.
3. Communication Should be Clear and Concise
Communication should be direct and to the point. Non-essential information that may inadvertently be included has the potential to ultimately confuse the recipient or even give an unintended directive. That said, good project communication should stick to the facts of the issue at hand when relaying information amongst project parties. First, clearly identify the issue and state your position upfront. Second, if information has been exchanged over a period of time, consider including a brief chronology of events. Third, if you are relying on something contained within the contract itself, refer to the specific provisions so all are aware of the necessary requirements. Last, but not least, refrain from emotion. Emotional communication can cloud the issues at hand and lead to confusion and/or misinterpretations. In that regard, even if there is a need to fix “blame,” refrain from making it unnecessarily personal.
4. Respond to All Important Communications
Although responding to important communications may seem like something that does not need repeating, it is almost inevitable that some communications will get overlooked or simply missed. Depending on the subject matter contained in the communication, this may have extreme impacts on the success of your project. While it is unlikely that “important” communications will be specifically designated for ease of reference, it is key that you review each and every piece of information received on your project, no matter the level of importance. This way you can be assured that communications that necessitate a response are properly responded to. This may seem overly burdensome given the size of your project, but missing even one email requesting confirmation on a key aspect of your project can severely impact your bottom line and completion timelines. If you are not sure whether a communication requires a response, ask counsel.
5. Beware of Hidden Communications
Additionally, given the vast amount of information that is circulated on a typical construction project, it is important to remember that some communications may be buried within other forms of correspondence. This may be due to individuals being short on time and bundling many tasks into one form of correspondence, or even may be inadvertent. Again, it is important to review each and every piece of information that you receive on your project to ensure all essential communications (hidden or not) are properly responded to. Hidden communications may be found in project meeting minutes, jobsite reports, or even emails about other unrelated issues.
6. Oral Communication
Almost certainly, the parties on a project will have oral discussions surrounding an issue on a project. Should this happen, which it will, it is important to promptly summarize the agreement amongst the parties in writing and circulate with all involved. This will ensure that everyone is on the same page and has the same understanding of the discussion itself. If there are any misunderstandings of the correspondence, the follow-up conversation will trigger additional discussions to flush out any misunderstandings or disagreements that may (unknowingly) exist. Again, this does not have to be in an overly legal or formal way.
7. Thorough Project Records
Not only is maintaining a record of all written communications on your project important, but also maintaining a complete history of the project can be equally important in the event a dispute arises later on regarding a decision that was made during the project. This “history” can include: (i) written meeting minutes that denotes present parties, decisions that were made, and other pertinent issues that were discussed and by whom; (ii) documenting all responses to RFIs throughout the project; (iii) jobsite logs which may show daily reporting metrics and parties who were present onsite; and (iv) all emails that may exist. As mentioned previously, hidden communications may exist even if the subject matter of the communication seems irrelevant. Of course, this is not an all-encompassing list, but just a few items that can assist in putting together the “history” of how a decision or communication was made, which can be extremely helpful after the fact when a dispute typically arises.
8. Follow an Established Communications Chain of Command
Construction projects can have a multitude of individuals who are responsible for certain aspects of the overall scope. Following the chain of command when communicating is efficient in that you are contacting the individual specifically tasked with the particular subject matter. Additionally, it helps with maintaining a positive atmosphere around the project. Not following the proper channels of communication can lead to uncertainty and discord (people feeling overlooked, angered, and undervalued, etc.), overtime and ultimately communication errors and delays. Obvious examples are making sure that, if you are an owner, you communicate with the proper person at the general contractor and not directly with the trade doing the work, who may feel conflicted by such communication.
9. Listen, Listen, Listen
Effective communicators must always remember to listen to the other side’s point of view. Although there may be a written paper trail of the decisions that were made, listening to one another can go a long way in helping come to resolution. Try and understand what the other party is “really” asking or trying to communicate, and even if it is not something with which you can agree, perhaps you can do so in a way that addresses unspoken portions of what is being communicated. Digging your heels in has never been an effective communication tactic. Being amicable towards others on the project can help to reduce the overall magnitude of a dispute or misunderstanding.
10. Follow Contract Requirements for Communications When Applicable
Finally, and most importantly, follow the pertinent contract requirements. If the agreement requires certain communications or notices be circulated, ensure you abide by such requirements. In the event of a misunderstanding or dispute, one may be prejudiced if certain procedures are not followed.
These are just a few rules to consider when applying good communication practices on your project. Having clear lines of communications and well-documented history of events not only can alleviate many likely headaches but also can create a positive atmosphere where individuals remain collaborative and connected with the shared goal of successfully completing the project.
Richard Reizen is a Partner with Gould & Ratner LLP and Chair of the firm’s Construction Practice. He has represented a wide array of clients in connection with numerous construction projects and complex commercial litigation matters. He can be reached at [email protected] or 312.899.1637.
Patrick Johnson is a Partner with Gould & Ratner LLP and a member of the firm’s Construction Practice. He focuses on construction transaction and litigation matters. He can be reached at [email protected] or 312.899.1668.