Disputes arise when parties feel that things have strayed too far from the norm. They find that terribly upsetting. Why? Well, there’s a theory that explains that...
This chap (let’s call him “our friend”) wrote to me. He said “I’m a chartered quantity surveyor who has worked in the construction industry for more than 30 years, mainly in property development. During this time I have always managed to resolve disputes with contractors by meetings and negotiation, and without recourse to adjudication. Recently, I have been disgusted.”
He then tells us why. In short, he took a mild thumping and felt ambushed. “I’ve been disillusioned over the whole process and I’d be interested to know your views.”
Here goes, then. It’s all in the “memes”. Are you into memes? They are any unit of culture, habits, skills, ideas, assumptions; information that becomes copied from person to person. They get lodged. And I bet that our friend is chock-a-block with memes passed on to him from 30 years ago, and that he is bursting to pass his cultural notions on to others. It’s the way we are made.
Think about his 30 years. Mostly, it looks to me that he has been the payer, as he is in this particular case. He knows that disputes are to be expected. His culture, his habit, his norm is to wait for trouble to brew, then negotiate. Our friend tells me that on this development he let a parcel of work. The performance was not entirely tickety-boo. The work was late and distinctly iffy, then his firm suffered extra costs. So, come the last interim account, our friend deducted liquidated damages and contra charges.
Eighteen months later and, bang, a notice of adjudication arrived. Pandemonium in the meme machine! Even more disturbing, the very next day, dammit, an adjudicator was appointed and hell’s bells, this fella is immediately on the pitch, complete with shorts, vest and whistle. But our friend’s memes tell him, convincingly, that this is not the way life works. True, true he admits to me that, well er, hmm, some of his contra charges 18 months ago “were a bit unfair” and if events had taken the turn his memes expected, well he probably would have recognised that some of these contra charges were a bit over the top. So he complains that he was denied the opportunity to follow his norm. He is disgusted.
What of the payee’s camp? Well, the people over there also know the culture of construction. And I bet you what you like that they are utterly fed up with not being paid the last 20%. If quality or programme really are not quite up to snuff, lots of excuses will doubtless pop up to give comfort to the poor performer. Twelve or 18 months later all the downsides will be forgotten, but the accounts department will still be saying a hefty balance is due. What happens then in the payee’s meme machine is that battle dress is donned. The little meme men get worked up. They become strategic; they are even willing to put their hands in their pockets to shell out for advice. Our friend doesn’t know any of this is going on. The payee wants his money and in preparation for the adjudication he seeks contractual advice. Once these advice chaps snap into action, complete with their own particular memes, which tell them to lift stones and peep beneath. I bet they spotted that the contra charges “were a bit unfair”. And the adjudicator plays by the rules. He decides according to contract, evidence and powers. His referee’s changing room has a hook on the back of the door; that’s where he hangs up his sympathies.
When the award came, our friend got what he expected. A mild thumping. Fair dos, he tells me. Yet he is still “disgusted”. Why? Well, the builder let his lawyer loose on our friend. So, he felt outdone and took legal advice to counter the other side’s legal advice. By the time of the award ordering repayment of the unfair items, he had to fork out several more thousands to advisers and adjudicator. He says: “We can ill afford to spend this kind of money on legal fees. And my time is better spent on the more important aspects of the construction industry.”
There you have it. The most important aspect of the construction industry for the contractor is getting paid. The important aspect of the construction industry for our friend is being able to be “a bit unfair”. It’s all in the memes.
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings Temple.
Original print headline: 'The meme machine'.