News | 02 July 2019
At Kiss House we are committed to finding new ways of working.
We’re committed to building strong relationships with our partners and suppliers not only because this makes our working environment much more pleasant than the alternative, but also because it inevitably benefits our customers who we believe gain an improved outcome. Collaboration is for us a powerful tool to be harnessed and below our founder director Mike Jacob sheds some light on why that is the case.
“Collaborate!” has long been cited as the panacea for the dysfunctional construction industry. In theory at-least, we can imagine the enlightened ones, the pure-hearted collaborators, sleeping like babies, They have ejaculatory dreams about equitable risk / reward apportionment and jubilant high-fives. Meanwhile the others (the majority!) perpetuate the ongoing cultural toxicity. They do not sleep well, psychopaths notwithstanding. They toss and turn; fearing the worst, paranoid, trusting no-one and doomed to fail out of self-serving short sightedness. Or they simply can’t take it any more.
There is a familiar scenario with construction clients investing finite, expensive resources in those who design and advise — without any guarantee of output. They’re often forced to employ others to save their derailed projects (who may employ unknown others). They are promised the moon-en-croute by the ‘professionals’ who often rely on the opacity of the system to extract margin via questionable means from the supply chain; suppressing quality and value.
Thus the culture in the construction industry as seen through the collaboration lens is one of dishonesty and greed. The tangled web of questionable motives and accountability is full of potentially catastrophic risks. It’s a very big ask to suggest things be different given the status quo — like trying to re-configure the central nervous system with a spoon.
This is probably mirrored in most other sectors, where a dominant and unhealthy trend triggers unhappiness of one sort or another. People often say that they’re being collaborative, or they sign things that say they will be, or when things have gone a bit wonky they may say a collaborative solution is what’s needed to help save face.
At worst it’s jargon — shorthand to give the impression that things are being done optimally. At best it’s an embodiment of humans with outer-directed values acting for the greater good. But it’s still work-speak. People don’t generally collaborate to get the school fete up and running, start a Neighbourhood Watch or run a 5-a-side football team, here where that type of approach is more natural they tend to simply roll up their sleeves and get stuck in, they don’t have to label it.
There is nothing original in what I’ve said above. There are enough opinion pieces saying more or less the same thing to render the opening lines as much of a cliché as the subject itself.
So let’s consider real collaboration. It is out there, hiding in the noise. When it occurs, so does brilliance because teams are at their best and projects fly. It can’t be forced or faked. Poor performance cannot be improved by authoritative demands for “Collaboration!” Real collaboration should generate outcomes only possible when a coherent and motivated group enters a flow state together, which is a special thing, and a logical aspiration for those in pursuit of best practice and quality.
Collaboration requires agents coming together for a common purpose to be:
They need to abandon:
- Hidden agendas
When unfamiliar faces sit at the same table, they either want to, or have to be there. If they have to be there, it is probably because of a contract, possibly reliant on a tick in a box clause like this from the Joint Contracts Tribunal (JCT — one of the most widely used construction industry contracts):
“An obligation on the parties to work in a co-operative and collaborative manner, in good faith and in the spirit of trust and respect.”
Alternatively, there are more appropriate contracts geared towards a collaborative approach from the outset. Parties agree to work transparently, fluidly and openly to hit clearly defined targets. These may be cost, time or performance related — or any combination or variation as defined by the client. The client needs to have a heavier involvement in this process than normal. The UK Government is active in promoting this method of working, which of-course dovetails with BIM (collaboration via a common digital model).
So what do the experts have to say? Construction law specialist and senior solicitor at Clarks Legal, Hannah Mycock-Overall offers the following thoughts on the need for greater prudence and being better informed, especially if good faith clauses are being relied upon (with an inference perhaps that such clauses may be no more than paying lip service to the true spirit of that which they appear designed to enable).
Hannah was asked for her view on how useful, enforceable and / or worthwhile ‘good faith’ type clauses are in relation to collaborative working:
“A general good faith / collaboration obligation may well be too uncertain to be enforceable. If it is interpreted in a way that means it can be enforced parties may be surprised by how limited the interpretation is. Examples include obligations “to observe reasonable commercial standards of fair dealing in accordance with their actions which related to the Agreement”, to disclose material facts, and not to knowingly give false information that the other party is going to rely on. However, these interpretations were all made on the precise wording of the clause in question in each case and they would not necessarily apply to all general good faith / collaboration clauses.
Parties to a construction contract containing a clause like this often expect that in the event of a dispute, the adjudicator / arbitrator / court will take it into account and say that it means the parties ‘have to’ behave in a certain way. However, unless there are express terms defining what these otherwise vague terms “good faith”, “collaborative manner” etc mean, and explaining how they impact the other obligations in the contact in terms of e.g. notifications or information to be provided, that interpretation is unlikely to hold.
For example, if there is a general clause requiring the parties to carry out the works in good faith and in a collaborative manner, and a separate clause setting out an express right to terminate, the good faith clause won’t constrain the rights of the parties to terminate the contract in accordance with the provisions of the termination clause. A classic example of where a good faith obligation was enforceable is where it related to a specified alternative dispute resolution procedure.
It is important to remember that good faith obligations don’t override the express provisions of the contract, and that they will be interpreted to govern only to the things they expressly relate to. However, this is a developing area of law and so if you have a good faith obligation in a contract you should try to keep up to date with developments so you aren’t caught out by a potential change in the interpretation.”
Whilst this legal analysis addresses important nuts and bolts, the thread running through all of this is that what is written down is meaningless without a deep and sincere will to work collaboratively, and that that has to be found across the board. Collaboration is doomed if there is a lack of sincere intent and engagement. Authenticity is a necessary component of real collaboration.
The consequences of a lack of collaboration are real and devastating proving that collaboration is not as some treat it – a term to be trotted out for the sake of appearances. We should all approach collaboration with deep respect and seek ways of working that are genuinely collaborative. This may very well mean a series of potentially exasperating amendments to contracts and a radically different approach to the way we work across the board. We will not cease running into disputes simply because we work collaboratively, though naturally working collaboratively ought to ensure that disputes do not escalate.
Dispute is after-all the opposite of collaboration. Collaboration is essentially dispute avoidance at one end and finding better ways of working at the other. To understand what can be gained by collaboration we must understand what is lost by not collaborating and recent figures published by the Health and Safety Executive bring this into sharp focus. The UK construction industry has a shocking record when it comes to the devastating effects of its dysfunctional adversarial culture:
- There are more deaths by suicide than falls from height in the construction industry annually
- Male suicides in the construction industry are 3 times higher than in any other sector of society annually
These shocking and indeed shaming statistics are directly related to the culture, which is frequently described as broken, flawed and prehistoric. This is not just about poor quality of design and delivery failing clients and leading to disputes. It is about a conniving undercurrent, emanating from an inner circle of wealthy, red faced, grey haired men who stay in the shadows. They set the tone and perpetuate an agonising reality for the many who reach the point of not being able to carry on with life.
Mental health is beginning to be regarded as a priority in all walks of life even the construction industry. As society continues to benefit increasingly from greater female influence even in fusty mail dominated fields like construction and the steely eyed, conscientious, plant eating younger generations gain more influence — we will hopefully see more and more authentic collaboration. We can already see it happening. All over the place — if we look around in unexpected places where innovation, disruption and magic is going on. Even in construction. Even in housebuilding. There is hope and it will not be facilitated by better qualified contract clauses — not at the deep level where it really makes a difference. It comes from the heart of each participating agent — otherwise yet another dispute lurks around every corner and more men in the construction industry will be failed and loose their lives.