And now, just a few months later, there is another dispute. Did the prime minister and his ministers mislead parliament in the decision to
go to war on Iraq? And since any old adjudicator, any old decider of disputes – including those in the construction industry – has other people’s fates in his hands, how does he properly decide a dispute and the validity of a proposition? For that matter, are people like me, and umpteen other adjudicators, really equipped, to decide important building industry disputes? If not, and if it turns out a decision is wrong – hopelessly wrong – yet binding, then people like foreign secretary Jack Straw would call my decision “a complete Horlicks”.
Construction industry disputes always come with baggage. Long before it gets into the decider’s hands, the parties have taken positions on the worthiness, the deservingness, of the other bloke. Words like fake, fraud and charlatan abound. Adjudicator Blair’s mind was already filled by the so-called undisputed fact that Saddam Hussein was an evil dictator. His form since August 1990, when he invaded Kuwait, had been overwhelmingly bad. Blair didn’t go to that dilemma with an open, unbiased mind – he isn’t Superman. Nor did the people telling him the story. It is so easy to have not only parties that are utterly convinced of their “rightness” but to have an adjudicator who becomes infected, morally contaminated, by sympathy for one side or the other. He might not start out leaning one way or another, but it might not be long before
It is easy to have parties convinced of their ‘rightness’ and an adjudicator who becomes morally contaminated by sympathy for one side or other
a lean sets in.
The prime minister was leaning before he started deciding. And the worry I have about low-level decision-makers like me is that I might fall for the side that makes the best case. Stop there. I meant what I said then. “Making a case” is what disputants in building disputes are nearly always doing. As an adjudicator, I don’t want you to “make” a case. No, I just want the evidence. And do you know, it happens time and again that I don’t get the evidence. Instead I get a story. I get told what to make of the differences of opinion. My horrible suspicion is that our prime minister was only told stories by people who detested Saddam Hussein. For example, the evidence was that “Iraq general intelligence was monitoring foreign embassies in Iraq”, but it got changed into, “spying on foreign embassies in Iraq”. Similarly, the evidence that Iraq was “aiding opposition groups in hostile regimes” became, “supporting terrorist organisations in hostile regimes”. That is “making” a case. It is bending and spinning. It is distorting.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on email@example.com.