A first-hand perspective of the truths we trade

This blog revisit an interview observation from an expert witness of delay disputes claims in construction

Introduction

The quoted text below, is from one of many interview observation I could not squeeze into the 15,000 word limit of my 2020 MSc dissertation. I really wanted to find a way to present it somehow – this blog presents a way.

The expert opinion

This particular account was a follow up discussion as I revisited the realities of construction disputes and delay settlements. To test an evolving hypothesis I asked a number of people whether there was even such a thing as a single project truth. I am grateful for the permission to present this first person account in this blog, duly anonymised as requested. I think we all know these observations to be true.

“In an adjudication situation, each side presented very different versions of timing of events, project status and critical path to project end.  The adjudicator in this instance reflected on the divergence of both accounts – which had little common ground on which to land.  Accordingly, a decision had to be made on which account gave the most compelling argument,  a more believable reflection of the true status.  My version was accepted on the grounds that the logic and build-up of schedule offered a more coherent truth.  The other account deemed to have reflected assumptions and positions that were flawed or nonsensical.  This was the starkest example I can recall of attempting to determine which is the right truth.  On other occasions adjudication has been settled as a compromise e.g. you have won this part of the argument but lost another part because…

As part of my training (in dispute resolution), a barrister advised that given the same facts it is only possible for two parties to convincingly present alternative truths by their focus upon different parts.  In a sense this is a reflection of finding common ground, the elements of dispute on which both parties can agree what the truth is…

Contracts can help or hinder.  We always had to add project control and reporting into JCT.  NEC embedded it, perhaps reflecting its project management influences.  But whilst it offers this structure, projects still end up in dispute.  The culture and ethos of the project parties remains a key factor too.  You can find examples of successful projects where people have found a way around poor contract drafting; and plenty of examples exist of the right contract, wrong team.  Leadership can also play a huge part in setting culture and behaviours, but also directly control whether/how information is filtered.  NEC does not prevent bad news being hidden.  That can be seen within a contractor dynamic where an open collegiate conversation to resolve a problem is being had with the supply chain but gets lost making its way up the reporting chain.”

Expert witness and construction scheduling specialist (anonymised)

My observations

Visibility | Behaviour | Trust

In construction it is the contract that governs critical control between commercial parties. The scheduling updates – the visibility – between one party and another tends to become part of the reporting across these contractual boundaries. The accompanying data, such as Primavera P6 XER files, built by one party, and reviewed in part by the other. We sit at distance and react to information presented – the behaviour. Often believing this data to have been subjected to party-specific influence in the exchange – i.e., the low levels of trust. It is time consuming and expensive to interrogate such files, and to have the necessary resource available to do so. Our behaviours are not to step closer to be ready for a less predictable result. Nor is it to spend more time improving visibility. Looking, or seeking another opinion, of the truth.

It is not until the low trust we suspect is beginning to be proven. Then resource is found. Once a dispute has forced us to retrospectively begin to take more interest, we increase visibility, seek expert assessment, prediction and modelling, of the counterparties motivations and behaviours.

This low level v | b | t is two way. The supply chain reporting progress upwards. The employer making information available downwards. The filtering happens everywhere, as does the self-first behaviour. Relying on a truth you doubt, is to be complicit in the failure it becomes. Turning the blind eye and to then stand behind a shield of blame.

I have commercial projects in mind. But is it any different in contracts of employment, or engagement of siloed interest anywhere? Within any one organisation these perspectives are commonplace. Anyone involved in budget projections, localised debates over year-end bonus pots, performance indicators beyond revenue, appraisal processes, relationship management, as well as interdepartmental or regional discussions of ownership and responsibilities, will know this to be true. This is all a question of how we control information, manage expectations, or be a recipient interest in the primacy and integrity of the data involved.

We happily accept answers we are given – visibly and in writing – and then take great care in those answers we ourselves present. We may be low on trust, but how much better is our behaviour in return? Who are we protecting first when seeking committed positions from another? What does it say of our projects when its collaborators are each motivated to enable a less personally committed position. Only in dispute to be asking what we did not previously want to know.

Contracts replace trust, or just contribute to its loss

This is what relying solely upon a contract for controls becomes. The bastion of the defensive decision-maker. The distant interest of the recipient of progress as reports.

shared v | b | t is shared truth

The alternative, or compliment, is to share a wider interest and input into control. One that both parties are feeding into. One that both are checking. Both are ensuring by effort and a shared care for accuracy to be true. That both are committed to put resource to the necessary upkeep, revisit, and critical review. This is what collaboration, and leadership in service of the other looks like. This is what it is to be a closely functioning team. Increased visibility, behaviours driven into the project not away from it, a realisation of the level of trust earned, trust dared, and what wider truth that represents.

projects | within projects

This is why I am building this case. Seeing the reality of what the unsupported contract makes us each become – when not supported by wider shared interest in controls. Empowering a challenge to self-serving behaviours of us all. Understanding the lack of trust – an understanding of how much we trust ourselves. Demanding accountability of leadership, to the service of us all. We all have a project in mind, but rarely the same one.

The fact that in all the questioning I have made. The interviews with people who see the results, experts who witness the behaviour, become entangled in the disputes that reinforce the distrust.

Every resultant dispute reflects a common truth. What is being disputed is the truth.

It is only the upfront interest to its oneness, the means to accept the cost and resource to align interests to its protection, and engendering the shared trust that can then emerge, that can make the dispute less likely. And if there is nothing left to dispute, then the project success is truly shared.

This is why I am turning to psychology for help

The human condition sits at the heart of all I observe here. It takes enlightened decisions. It necessitates clarity of expectations from visible accountable people. Reflecting appropriate leadership with primary interest in all actor safety, not simply the subsets to which they are a part. Leadership that is at the heart of the architecture of the critical controls needed. With this v | b | t accounted for, we can begin to unify the projects | within projects we are all a part. This is from where we build trust. From where each project actor’s v | b | t turns inward. Towards one project truth.

Come and visit me on my journey back to university. As I search for better answers

This blog space will be my place to introduce psychology to projects, risk, and people management. As I develop a better understanding of how these behaviours can be accounted for, visibility better understood and measured, and whether there are ways to revisit trust. Seeking better ways to frame a project need, and manage the frameworks of control and leadership their success relies.