Managing Claims And Avoiding Conflict Through Documentation, Communication, And Early Action

Delays and associated damages remain among the most common and contentious challenges in construction projects. While delay events themselves may be unavoidable, how parties document and address potential delays can make the difference between amicable resolution and costly litigation. Inconsistent reporting, unclear expectations, and late escalation can turn manageable impacts into prolonged conflict.

Ankura’s Thomas Certo recently shared insights during a panel discussion at the Canadian Institute’s 18th Annual Conference on Navigating Risk in Construction Projects & Contracts, West, held in Calgary.  The panel brought together legal and advisory professionals to discuss delays and damages, and to share practical strategies for managing claims and avoiding conflict. The panel was titled Delays & Damages in Western Canada: Legal Strategies for Managing Claims and Avoiding Conflict, and the panelists included: 

Jordan Crone, Partner | Gowling WLG (Moderator) 

Warren Foley, Partner | Gowling WLG 

Thomas Lloyd, Senior Director | FTI Consulting 

Thomas Certo, Managing Director | Ankura Consulting 

While the conference was based in Western Canada, the below takeaways reflect common challenges and best practices that apply across construction projects, globally.

Drawing on real-world experience, the panelists focused on the tools, behaviors, and decisions that commonly influence claim outcomes before disputes move into arbitration. In particular, the discussion highlighted how proactive documentation, clear communication, and timely action can influence whether issues are resolved collaboratively or escalate into disputes.

Documentation as the Foundation for Managing Delay Claims

A central theme of the panel was the critical role that proper documentation plays in resolving delay‑related conflicts before they derail a project. Accurate schedule updates, robust reporting, and timely contractual notices were deemed essential to maintaining transparency and alignment between parties.

The panelists noted that contractors may fall short in providing consistent and reliable project status updates, leaving owners without the ability to understand and address emerging issues or potential impacts. Conversely, owners were cautioned against over-reliance on contractor and engineer-consultant documentation alone. Maintaining independent records allows owners to better track progress, validate claims, and ensure key issues are properly recorded as the project evolves.

When documentation gaps persist, disputes can become more complex, and positions tend to harden, leading to increased resource allocation to address the underlying issues.

Identifying Red Flags Early to Enable Mitigation

A key discussion point was the importance of recognizing early warning signs of potential delay or cost impacts. Red flags, like unexplained schedule slippage, inconsistent reporting, delayed notices, or limited visibility into project challenges, often appear well before formal claims are submitted.

When these indicators are identified early and communicated clearly, parties have greater flexibility to mitigate impacts collaboratively. The panelists observed that owners frequently want to help address emerging issues but are unable to do so if they are kept in the dark. Late disclosure can eliminate opportunities to minimize delays and, in some cases, exacerbate their impact.

Early, open communication enables timely intervention and can reduce the likelihood that manageable issues escalate into formal disputes.

Liquidated Damages: Practical Considerations and Enforceability

Liquidated damages were another focal point of the discussion. The panel explored how these clauses can be effective risk‑allocation tools when they are enforceable, proportionate, and grounded in real‑world project conditions.

Owners considering enforcement of liquidated damages should be prepared to support how the amounts were quantified during the planning stages. Demonstrating a clear connection between anticipated impacts and the agreed-upon damages can be critical in defending the reasonableness of liquidated damages.

From the contractor perspective, the panel discussed the obligation to mitigate delays, within reason. While contractors may not be required to implement extraordinary measures to recover a project, taking reasonable steps to address delays is often preferable to inaction. As one perspective emphasized, it is often better to do something than do nothing.

Resolving Claims Before They Escalate

During the discussion, the panelists consistently emphasized that successful claim mitigation and resolution depend on maintaining clear lines of communication between parties. Well‑staffed, trained, and actively managed project controls and contract management teams can influence whether a project ends in dispute or resolution.

Where internal resources are limited, the panel suggested engaging external consultants to perform periodic cost and schedule reviews. These reviews can provide objective insight, assist in identifying emerging issues, and support informed decision making before disputes escalate.

Key Takeaways: Communication and Capability Drive Outcomes

Across all aspects of delay and damage management, a consistent message emerged: Claims are rarely driven by a single event. More often, they are shaped by how well teams document progress, communicate emerging issues, and respond when challenges arise.

Maintaining open communication allows for the timely flow of information and enables early identification and constructive resolution of potential delays. Combined with strong project controls and adequate resourcing — whether internal or external — these practices can reduce conflict, preserve relationships, and improve overall project outcomes.

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