You can have all the collaboration and co-operation you like in this industry of ours, but fundamentally the Roundheads are right: it’s all about the contract …
I met a man the other day who was a partnering consultant. He liked being a partnering consultant. He told me how he worked hard to avoid disputes breaking out. But I made a mistake. I asked him if he worked hard to help folk on the building contract obtain their contractual rights. I wish I hadn’t mentioned the word “contract”. His face fell. He didn’t want a contractual agenda. I want to be a partnering consultant.
I met a man the other day who was a mediator. He liked being a mediator. He told me how hard he worked to resolve disputes. But I made a mistake. I asked him if he worked hard to help folk on the building contract to obtain their contractual rights. I wish I hadn’t mentioned the word “contract”. His face fell. He didn’t want a contractual agenda. I want to be a mediator.
I met a man the other day who was a framework project manager. I liked him. He liked bestowing work on builders. He told me how he didn’t have to work hard to avoid disputes. But I made a mistake. I asked him if he helped folk on the framework contracts obtain their contractual rights. His face lit up. He didn’t need a contractual agenda. He was the patron. They had to behave his way if they wanted another job. I want to be a patron.
I find all this fascinating. There are two distinct camps: Roundheads and Cavaliers. Now, let me tell you a secret. Umpteen years ago, I was responsible for the management of a company. Some of my colleagues were Roundheads, some were Cavaliers. No, I didn’t tell them. Not one was a duffer. Each had the job, the project, the customer, and the good of the company as a priority. Great blokes. The Cavaliers were never made responsible for the projects that were, how shall I say, “contractual”. Those were what I called “formal” projects. The Roundheads handled those. Why? Because those jobs ran smoothly if the contractual processes were followed. My Cavaliers, on the other hand, were good at what I called informal “fit where it touches” type projects. Some projects were arm’s-length transactions; others were rub-shoulders, cuddly transactions.
Put another way, some folk believed in the contract. Others were not interested one little bit. And among those not interested were those who were terrified of that contractual stuff; they made no effort to read it. They bunged it under the carpet. The Roundheads had books, went on courses – they even had a library of contract forms.
My partnering consultant and my mediator are Cavaliers. They cannot bring themselves to talk about contractual rights. The snag is that, when carrying out a partnering project, it’s such a nuisance when someone wants what the contract says they can have. It’s a snag, too, when you’re mediating and one of the parties wants what the contract says. It’s an even bigger snag when someone says “no more work for you, sonny” just because sonny wants what the contract says.
The trouble with Roundheads is that they view the contract as a list of promises. I promise to do this work; I promise to pay you; I promise to do the work on time; I promise to give you a programme. Promises, promises, promises. A handbook of promises. The trouble is one fellow expects the other fellow to keep his promises. And they don’t get kept. Result? You work it out.
I want to be a partnering consultant. I want to do all the things my man does; he stimulates collaborative working, a spirit of co-operation, but I want to do it with knobs on. I want parties to keep promises. If the application for payment is met with a long face of disagreement, let partnering do its stuff here, too. Partnering is keeping promises. They are in the contract.
And I want to be a mediator. I want to do all the things my other man does. He sits down with disputing parties, stimulates co-operation; but I want to do it with knobs on. Folk who come to mediation can’t leave promises behind. They want to talk about contractual rights too. So let’s talk. The mediator can test the promises in the contract and help parties to see their strength.
As for the framework, my framework contractor man winked. You have to make sure the price is good enough to give the patron what he wants. My face lit up.
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings Temple