Introduction

My father, pictured above thirty years ago this month, was a musician from the jazz/swing era (big bands) who adapted to survive. As large dance bands died out in the 1960’s he transitioned to Showbands and shared the stage with Kenny Ball, Acker Bilk and their counterparts.

Later still he found himself playing in a comedy show band for around 20 years. He was a funny guy, but his real talent was displayed when he was playing music. He was an outstanding clarinet and saxophone player, widely appreciated by UK and US audiences.

By 1994, his (almost) retirement, he was leading a resident band at a venue in Yorkshire. That year his life in showbusiness was rewarded with an award that recognised his services to charity as well as his musical talent. Towards the end of his life, he mastered the organ and transposed almost his entire fifty year repertoire of clarinet music for players of the piano and organ.

When he died, I donated his valuable saxophones to a student saxophonist and his trusty clarinet to another musician. His arrangements of songs and tunes from the 1950’s to 1980’s went to yet other musicians.

Even today when I hear Stranger on the Shore played on clarinet, I think of him. Yakety Sax has the same impact on me. As a teen I recall there being a Stranger on the Shore ‘play off’ between my dad and Acker Bilk at Doncaster Racecourse in the 1970’s. Acker Bilk, a remarkable man, was a self-taught musician and so he traditionally ended the tune with a safe low note. My dad always ended the tune with a screaming high note that seemed all but impossible to reach, but he hit it every time.

My dad was a showman. He could hit that note easily every day of the week, but on stage the concentration on his face suggested it was a one-off life achievement. I never heard him play it in front of an audience where there was not a standing ovation after that note.

I know that wherever he is now he will be as happy as he made everyone else feel when he played his music for them, but what has this to do with construction disputes?

What tenuous link has Jeff Whitfield created to make this anecdote relevant? Well, read on!

Passing Years, New Attitudes, New Techniques.

In 1994 I was asked by my publisher to put an extra chapter in my first book, Conflicts in Construction’, entitled Disputes in the 21st Century. By the time I wrote the second edition I realised that I had been miles off the mark, twenty years earlier. I had assumed that the gene within our human genome that called for conflict, was being purged, and that a less disputative future lay ahead.

This blatant optimism, especially coming from a student of human anthropology and psychology, was unforgivable. But it gave me hope at the time.

Now, I am going to ask you to persevere with me for a while. I was wrong back then but with fifty years in the business, I have learned some things that might change our future if we can adapt to a new reality and transition to meet the new needs of the market. Just give me ten minutes.

Today, we are in a constantly changing world where the challenges come upon us with such great speed we can barely catch our breath. Covid, wars, energy crises, inflation, lack of materials, shortage of labour and a massive demand for building work and engineering projects across the globe.

Your challenge, as a construction based problem solver, is to adapt to the current vogue, test the new prevailing attitudes, attack different challenges and to do so in a way that still allows you to be economically viable in the marketplace.

Excited for you!

There have always been challenges facing our industry. It is a privilege to be working in the greatest industry the world has known. Greatest Industry, really? Yes, building, construction and engineering have together driven individuals, companies and empires to great success. The Pyramids are over 3,500 years old, many of my favourite buildings in the UK are many hundreds of years old. I am certain your time has come, and you will help our future projects to provide cleaner energy and better living/working accommodation for billions of people.

I understand that there is a trend amongst some individuals to understate the achievements of the past, to blame historical figures for making decisions that may well have been their own decisions, had they been there and brave enough to decide. However, if we want to s in consulting, we must eschew the trend for easy criticism/pessimism and learn to embody creativity, growth and problem solving.

Solutions are found by people like you, people dedicated to solving problems. They are not found by noisy activists walking down city streets with banners complaining about everything and anything. If you want change you need to be brave and tireless in finding answers that move humanity and our world forward.

I believe that you should be excited about the future. Yes, we need cleaner energy, yes, we need less waste and consumerism but we don’t need the poverty and the conflict that so easily could follow, depriving the poorest of us a worthwhile existence. I believe that you can help change that.

You will soon be building fusion powered power stations, building roads that charge electric cars as they travel, you will be able to ensure that homes and businesses are always warm/cool and healthy using minimal energy and providing maximum affordability. These are not pipedreams they are your present and your future.

New Attitudes

There are many things that were acceptable in the past which are now passe.  We recognise the need to monitor and control our carbon footprint. We utilise such wind and sun as we have to power our lives, and to reduce our reliance on fossil fuels, as essential as they are for the survival of future generations.

I have always embraced diversity in the workplace, as have generations before me. Now we need to be even more wary that we don’t make easy choices and that we are more rigorous in searching for future employees and colleagues, rigorous to the extent that we consider every suitable candidate and that we help those with challenges to reach their potential and thus help our business to achieve its potential.

If we are able to do all of this, then surely we can adopt a new attitude towards conflict and costly disputes. So, what can we change to ensure that we are being as enlightened in conflictive matters as we are in our personal lives?

Here are ten obvious answers, nothing new to construction professionals, just a reminder.

1)      Don’t try to construct something that is not affordable. If you do the budget will be blown and money lost. Ensure that the market can afford to build your project for what you are offering. If you suspect they cannot build your project for the price, they probably can’t.

2)      Try to detail your requirements as far as is possible before asking someone to commit to a price. Uncertainty and ambiguity cause as many conflicts as errors and failure to perform.

3)      Commit to the contractual relationship, a long marriage needs kindness, shared goals, shared obligations, fairness and a good deal of tolerance. So does a construction contract.

4)      I am assuming that you are not using sharp practice, but if it was in your contemplation abandon the idea. Make contractual arrangements that fairly attribute risk, rewards, burdens and benefits. Don’t use market pressures or economic leverage to find a cheaper build.

5)      Keep talking. Share the good and bad news immediately, work together to find solutions… even if the problem is not yours… because if you don’t, it soon will be.

6)      Keep exceptional historical records, keep accurate contemporaneous records, keep everyone informed of what you know, what you fear and what you foresee.

7)      If two party discussions are not working in any dispute seek out the good offices of an independent individual that you both trust before enacting any formal proceedings. I have rarely been involved in a dispute where an independent view was not warranted or useful. Money is better spent on the completion of the works, rather than on a parallel dispute resolution.

8)      Don’t be afraid to change the bargain if it makes sense for all concerned. Contracts are not immutable. This is often a better way ahead than continuing with a failing arrangement.

9)      Be amenable, approachable and friendly. Make it impossible for people to dispute with you because of who you are. Generosity and tolerance are not a sign of weakness if they are displayed by an assertive individual or company who sets firm conditions.

10)   Try your very best not to instigate change to a project unless it is vital and unavoidable. Try to live with the original and make amendments later, where you can.

New Directions

I began my career as a site planner, became a trainee QS and rose to a senior QS before turning to commercial and financial management. Then a love of contract law and procedure gripped me and I read for a law degree, joined the Chartered Institute of Arbitrators, became a mediator and eventually a consultant and expert witness.

Now I still give expert advice, write reports and testify, but probably not for much longer. My new great love is mentoring, helping prepare the next generation of consultants and experts to be so much better than I ever was.

If I had to add an eleventh point to my list it would be this: Leave a legacy of good feeling by helping others climb the ladder and making space for them at the top, where the view is at its grandest!

Jeff Whitfield LLB, FRICS,MCIArb

Jeff is a Director and Testifying Expert Witness at CCi a Rimkus Company.