#1 Failure to Communicate
By Ed Martinet
Florida – I was in a meeting today when it came to me that “we have a failure to communicate” in the CD and construction claim/litigation arena. While this failure to communicate does not always occur, in too many instances it does.
The systemic failure begins when a plaintiff fails to accurately and fairly present a claim that meets the realistic needs of the owners. The communication failure continues when the defense does not completely address the plaintiff concerns, bringing up issues as owner maintenance and responsibility for decisions it may have made during the design and construction of the project. Then the communication failure continues when the subcontractors fail to properly address their potential exposure or refuse to accept responsibility for their share of the plaintiff’s issues.
Fortunately, we have been observing plaintiffs, defense, x-defendants and carriers that are willing to look in a new direction for ideas to help get cases/claims resolved sooner, spend less money to get to resolution and be comfortable with a “fair” approach. There is good reason why this is the case. That’s because the current “system” that addresses the majority of CD cases is not a sustainable business model.
We have all observed the cracks developing within the infrastructure of the CD industry over the last 10 years. And similar to all “maturing” industries such as manufacturing and health care, if we do not provide sufficient thought and creative energy to help this “industry” become more efficient and equitable, new models will be imposed upon us by the folks paying the bills, the legislatures drawing up the laws and the judiciary interpreting those laws. Very similar issues have been addressed in many industries. In those business sectors, where failure to adapt and innovate has been the mode, pain and failure have been the result.
So I applaud all those that have and will continue to innovate with new resolution models. And while all of them are not successful, we learn from those experiences and put forth more energy and thought to transform again. To that end, Lima introduces a model for resolution that is working now, and will expand into a model for claim/case resolution. We call our model “Value Engineered ADR.”