Engineering a Successful Negotiation

Resolving construction disputes can be accomplished through several forms, including litigation and alternative dispute resolution (ADR), that involve negotiation, mediation, and/or arbitration, with the most prevalent use of ADR being negotiation. Given the ever-increasing cost of litigation and arbitration and the time and increased expense to finding the right third-party neutral to mediate, more companies are beginning to realize that when disputes arise on a construction project under an existing agreement, solutions to those disputes can be resolved through negotiation. Most engineering and construction projects involve engineers in decision-making positions. Engineers are good at engineering and construction planning and execution, relying on their problem-solving skills to execute projects; however, they have little training in communication and no education, experience, or framework for designing a negotiation plan and instead may rely on their legal counsel to be the negotiators when disputes arise. Engineers should consider being the negotiator of disputes that arise because in most construction contracts there is a stepped dispute resolution process involving on-site personnel, and the project personnel are more often than not engineers at the decision-making level. Engineers are trained in engineering school to follow a disciplined process of analyzing facts and indentifying assumptions when solving problems. Engineers understand the issues underlying the dispute and understand the facts of what happened during the project. Thus, negotiation should be a forum in which an engineer can utilize his or her knowledge in preparing for negotiation with or without counsel depending on the individual project circumstance, similar to the steps that would be taken in preparation of the design and execution of a project. This paper focuses on the author’s personal experience in employing negotiation techniques regarding an actual situation that arose on a major transportation project. This example will assist engineers in understanding how to successfully negotiate engineering and construction disputes by (1) discussing why negotiation offers a viable solution to resolving engineering and construction disputes, and (2) addressing how best to design a plan for negotiation for a successful outcome.