Knocking Down Construction Disputes
Barbara is a trusted adviser and international authority on setting strategy and delivery of projects. She has received two doctorate degrees from British universities and has produced a body of published works endorsed by the leading global professional associations. She exemplifies an approach to life as a project manager that everything we face is a project – a collaborative enterprise requiring the right methods to resolve it. In her thought-provoking presentations, she promotes a 360-degree duty of care inside and outside of work. She speaks with Lawyer Monthly about the changes the field of law and construction could undertake to ensure problems are solved in an improved manner, and the key skills and motives behind her success as an exceptional project manager.
What does it mean for you to be a project manager? What attracted you to the profession?
For me being a project manager means sitting in the engine room of the business. I deal with the day-to-day projects and contracts that drive the success of the firm I work for and my clients. What attracted me is the lack of clearly established boundaries of what it means to be a project manager. The great majority of professions see the world in simple terms, for example in the legal profession you are either a lawyer or a non-lawyer. As a chartered architect, I realised that the boundaries of our professions are generally the greatest limitation to what we can deliver. Project and contract management offered me opportunities to deliver positive outcomes beyond what would be possible for me as a member of a perhaps more traditional and established profession.
How has the world of construction changed since you began in the profession?
The biggest shift I observe on a day-to-day basis, apart from the relentless march of technology – digitisation, deployment of enterprise project portfolio management platforms, building information management systems and drones – is probably the realisation that construction projects are made of flesh, not concrete; they are works-in-progress that never stop adjusting to the changing needs, technology and aspirations of their users. There is also a significant shift towards a genuine concern for wellbeing of the people we work with.
What changes had a significant impact for major cities and corporations?
The increasing concentration of the world’s population in cities and the growing accumulation of political and economic power by corporations create new threats and opportunities for improving global health. Our cities need to respond to these stresses and quickly – their liveability and competitiveness depend on it. At Arcadis we are proud to work alongside some of the world’s most forward thinking cities across the world, to compete and attract investment, deliver and develop transformational programmes that improve the quality of life and increase resiliency. Our Sustainable Cities Index explores the three demands of people, planet and profit to develop an indicative ranking of 100 of the world’s leading cities.
What could construction companies do to avoid disputes and legal action? What cases could easily be avoided?
In construction, we tend to define a dispute as a situation where two parties differ in the assertion of a contractual right, which results in a decision being given under the contract, which then becomes a formal dispute. The industry is getting better at proactively addressing disputed issues and the majority of construction disputes are resolved privately. Arcadis’ data-driven review of projects and disputes, ‘Global Construction Disputes Report’, considers the most important activities in helping to avoid a dispute to be proper contract administration, fair and appropriate risk and balances in contract and accurate contract documents.
Could you suggest any legislative changes you would make to improve the outcomes of your work?
At present, we are obviously concerned with the potential impact of Brexit, given that so much of the debate concerns free-movement of labour. It is conceivable that any changes to labour market rules could affect the UK’s ability to meet long-term project commitments and could turn out to be a significant trigger for project problems and possible disputes over the next few years.
The leading issue for me is the instrumental control that has been imposed by the UK Government focusing on how buildings should be constructed which exacerbates, rather than solves, the energy consumption and CO2 emissions problem. There is certainly a need for the government to adopt an enabling role for the issue to be addressed at a scale commensurate with its magnitude.
Construction is certainly one of the major energy-consuming and carbon dioxide producing sectors; however, it is not the hardware of buildings – bricks and mortar – that is the sole source of the issue, but its software – the people who inhabit or occupy these buildings. It is us, after all, who are blissfully unaware of the critical mass of government strategy that has gone into the design and construction of our offices and homes, open the windows in our airtight buildings because it is too hot, turn on all the lights, with energy-saving bulbs of course, as well as our brand-new digital energy-saving televisions whilst the old, less energy-efficient ones join other unwanted goods in our bike storage space. This means that the potential of the current legislation to deliver significant CO2 emission savings and offer a genuine solution to the energy shortage issue is highly debatable.
How did your career path take you to the position of a Board Director of the International Association for Contract and Commercial Management (IACCM)? What was your main goal to achieve when your joined the board?
My vision for my professional career stems from my very early career as a volleyball player. At a mere 5’10’, I was at a disadvantage to the top European players who averaged 6’2’’ in height. What I achieved though, was a vast collection of fair play awards. This strong notion of fair play which accompanied me in sport, in the construction industry context, translates to an atmosphere characterised by openness, co-operation, trust, honesty, commitment, and mutual understanding among team members. Considering this parallel between sport and construction, I developed my personal and professional brand as a project manager around these values. In my first annual professional development plan, which I submitted shortly after joining Arcadis, my answer to the question ‘what is your career aspiration?’ was very different from those of all my colleagues, who identified the next step on the corporate ladder, such as ‘senior project manager’ or ‘partner’. Mine was ‘I will be the next Sir Michael Latham’. Taking forward Latham’s concept that through teamwork the construction industry could delight its customers and following the publication of Arcadis’s Disputes Report, whose findings demonstrate a growth in the value and length of contractual disputes in the construction industry and that the most common cause of disputes is a failure to properly administer the contract, I created the global IACCM fair play recognition – the Excellence in Contract Management Award. This award aims to recognise and promote those individuals who, through their ability to do the right thing, achieve the best results. This award is open to all contract and commercial practitioners globally, across all sectors.
As a Board Director of IACCM I also look at ways in which I can support the growth and organisational success of IACCM by promoting initiatives that develop a sense of pride and satisfaction among its membership. I would like to expand the ways in which IACCM supports and empowers its members.
You co-authored a reference book with key-players in the legal industry, Liquid Legal, that compels the legal profession to question its current identity and to aspire to become a strategic partner for corporate executives, clients and stakeholders, transforming legal into a function that creates incremental value. Can you expand on this?
Liquid Legal was an intense collaboration of over 30 authors: professors, legal counsels of multinationals, CEOs and COOs of leading legal process outsourcing providers, co-founders of legal search firms, pioneers in legal operations, attorneys and entrepreneurs. This resource provides a broad range of perspectives, advocating a shift that will see future corporate lawyers no longer being primarily negotiators, litigators and administrators, but intermediaries who link legal opinion within the context of the business.
My proposition revolves around the challenge of what if, in the construction industry, a contract administrator, contract manager or even a portfolio, programme or project manager, rather than being a construction professional with an appreciation of legal issues, happens to be a law practitioner trained in basic construction? Construction is one of the few uncharted waters for lawyers. While in most other sectors there might be complaints that lawyers are too intrusive, in construction, lawyers are very rare. Considering the average value ($51m) and length (13.2 months) of a construction dispute, the potential benefits to the industry of legally trained professional staff taking over contract administration and various project management roles are immense. With construction projects increasingly being aggregated into big complicated programmes, attracting additional risk as well as political and public attention, high-visibility disputes are not an option for their owners. The construction community should follow suit, and greater involvement of satisfied and professionally fulfilled legally trained professionals offers an opportunity for the industry to deliver excellent customer service.
ence of practitioners, executives and government.
