Few things are as important as the ability to communicate effectively, particularly in construction claim negotiations and litigation. Disputes in the construction arena often involve technical information and damages, especially if indirect damages are incurred, such as productivity losses or delay costs. The party who incurred the damages needs to be able to communicate to the other side why the damages were incurred and the impact certain events had on project costs.
Audiences retain visual representations of data with greater accuracy and for a longer period than they do the written or spoken equivalents of the same information. Visual aids, such as graphs, timelines, and tables, are effective with audiences unfamiliar with the project details, who may include upper management, mediators, arbitrators, or jurors. The visual aid needs to bridge the gap between the technical information and basic damage outcome. The outcome of the negotiation or litigation improves when the other side understands disruptive work impacts and the methodology used to formulate the damages.
There are several types of construction claim impacts and damages that can be visually represented in a persuasive manner. Most significant is presenting damage quantifications and cost impacts in a concise, comprehensive manner, such as breaking down increased labor costs and material costs or extended home office costs using a table or pie chart.
Incorporating events that led to the increased direct and indirect costs is also an effective tool during negotiations or litigation. By combining the project documentation with the damage analysis, the material is displayed in a way that encourages the viewer to independently reach the desired conclusion. Presenting a timeline to walk the audience through the sequence of events establishes the framework for a damage calculation or schedule impact. Representing cause-and-effect relationships is extremely important, particularly for complex issues that audiences may have difficulty understanding with written descriptions or verbal testimony. An example of a cause-and-effect relationship is a late item of equipment that disrupted and delayed several areas of work, which in turn disrupted and delayed additional areas of work.
Effectively communicating unforeseen schedule interferences and delays to the critical path can be crucial, especially if the audience is unfamiliar with scheduling concepts. Another area of construction claim analysis that can benefit from visual aids is productivity reductions, such as illustrating the labor productivity losses with manpower graphs or a measured-mile table.
The key to communicating a damage position is linking hard evidence with analytical results. However, before an audience can be persuaded, the audience must understand the basic construction or engineering principles that underlie the damage arguments. Thus the audience may need to be guided through an explanation of the methodology utilized and the different layers of data analyzed. Incorporating visual aids, such as pictures or maps, can assist in identifying party liabilities caused by certain actions.
Furthermore, the facts must be presented in an accurate, direct, and persuasive manner; but in order to be credible (and admissible in court), it is important not to stray away from the facts. Persuasive methods include the use of strategic color combinations, layering of key project documentation with man-hour graphs showing disruptions or with as-built schedules pointing out delays, and combining several analyses that all contribute to the same conclusion within one graph.
While presenting a technical analysis to support project damages is a good idea, it is even better if the audience understands it and is persuaded to agree with it.