We’re so conditioned to looking at the world in a particular way we stop thinking about it. But what if it is, in fact, quite wrong? And what could prompt us to realise it is?
Are you a possibilian? Never heard of the word? We dispute-deciders are surrounded by possibilians. Let me share with you some ideas about the disputes business I have harvested from them. The word, by the way, is the invention of a scientist called David Eagleman. He likes to gather ideas, even wacky ones, because he believes that science proceeds from them. He also coaxes you to recognise how much fun it is to celebrate the vastness of ideas rather then being locked into a culture that has been poured into you.
Let me tell you one. Ever since I began reading reports such as Banwell in 1964, before that Emmerson, after that Latham, these learned men have been telling me how wise it is to have design-and-build contracts. Then one day I bumped into a possibilian. His wacky theory was that it is a trick. The idea is to get the real designers to reduce their fees. Get them to stop short in designing the solution about ground conditions, structural loadings, fire protection, M&E and more besides. Instead, pass that burden to those who install, lay, fix and weld; get them to come up with the design solution – at a competitive price, or even for nothing! His theory goes further. He says design-and-build main contractors don’t design at all. They pass that risk to a subcontractor, which passes it to a sub-subcontractor who is likely to be a bloke who read somewhere that asbestos makes a good fire barrier. It’s possible. But his theory doesn’t stop there: the consultants thoroughly approve shifting the design risk into the builder’s office; it’s called risk dumping. It’s definitely possible.
Another possibilian came up with the idea that partnering, collaborative working, teamwork, are completely counter to our ordinary everyday enthusiasm for taking advantage of circumstances. His notion was that the very mention of “working together” is a signal to put the price up. Look, he said, contracts are almost always begun with only half an idea of what work is required. So, there follows a mass of changes or “clarifications”. They are a pain to organise, disruptive to progress, cost an arm and a leg and may destroy the programme. And a whopper of a bill follows. Ah, but, this is a partnering project. We are not into rows, disputes or claims. The partnering flag has a £ sign on it. And the man holding the flag was giving his fellow team-workers a nod and a wink about the bid price.
But another possibilian had the wacky idea that even if there has been all this warm talk about working together, it was best to exploit every circumstance. He wasn’t into adding a load of pound notes into the bid. His theory was that the jobs are won at the lowest price, and that the deal invites a bill for disruption, dilatoriness, or delay. This possibilian said it was a predatory game of catch-as-catch-can.
Wacky? No, possible. Mind you, he had another wacky idea. He said, if (big if) a tender included a full set of drawings and details and specification and invited him to build to a set programme, he would give a damned good price. And if thereafter the client and architect and engineer kept their mouths shut, he would build on time for the original price. This possibilian detested make-your-mind-up-as-you-go jobs.
But I was brought up to believe there must be an absolute right for the customer to require variations. Banwell: “We regard variations as endemic to the building process and it is foolish to condemn them.” And do you know that, having had that pumped into me as a young man, I accepted it was right. A possibilian at the RIBA, years ago, wrote a pamphlet called Working with your Architect, which among other things, advised clients “of the desirability of avoiding variations because of the dislocation they cause”. Another possibilian said variations ought to attract “a premium”. No, no, said others, only the “true costs” should be paid. Damn right, shouted others – mostly lawyers.
So come on, advance possibilities. Of course, in the beginning they will ignore you. Then they will laugh at you. Then they will argue with you. Then someone will say: “Oh, he has a point.” Then someone will agree. And one day they might even put up a monument to you: “The Possibilian.”
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple