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Compromising a construction and engineering dispute through mediation

 

Niall Lawless 

Chartered Arbitrator and Engineer, Adjudicator, Mediator

 

 

 

 

 

CIC Construction Industry Mediation Panel
The CIC is considering the creation of a CIC Construction Industry Mediation Panel, and which would accept Mediation Panel applications from accredited experienced Mediators who are Fellows of CIC member organisations. Expressions of interest to Chi Wong (cwong@cic.org.uk) are welcome.


Mediation works best when there is balance and harmony between people and the participants’ trust in the process.

Mediation process is confidential, private and structured. It has five stages: Introduction, Information Exchange, Option Generation, Negotiation, and Conclusion. Information Exchange and Option Generation are by far the most important. Mediation is not adversarial and works best where the parties are willing to cooperate together to solve a shared problem, and because nothing is agreed until everything is agreed in writing, it allows the parties to take risks when they come to deal with individual items.

Mediation people includes the parties, their lawyers or representatives, and the mediator(s). 

Commercial mediation begins with the parties agreeing to mediate, and usually ends with the parties compromising their dispute. The parties are the stars; most often they are common sense business people motivated by revenue and contribution, and the desire to continue their future cooperation.

The parties’ lawyers can make or break the mediation. Good mediation lawyers can move seamlessly to advisor from advocate. In their role as advocate they will succinctly summarise legal arguments, but not in an adversarial or combative way, gifting litigation risk to the mediator. They allow the business principal to take the lead, preparing their clients offering advice, guidance and information on negotiation and mediation. Good mediation lawyers cope well with being challenged privately by the mediator, they are experienced and wise, and they are committed to find the best possible solutions for their client.

During the mediation a neutral third party, the mediator, assists disputing parties’ compromise their dispute using communication and negotiation skills. Essential parts of the role of mediator are to be the guardian of the mediation process, to facilitate the exchange of information, to help the parties reality check their position, and to leave no value on the table. The mediator should be adept using the phone, as it will be essential in early engagement relationship building, and promptly discussing and agreeing the manner in which the mediation shall be conducted. The mediator should be comfortable dealing with feelings, where there is a fractured relationship, the mediation may have considerable emotional content. As mediator I always commit to follow the European Code of Conduct for Mediators which sets out a number of principles to which individual mediators may voluntarily decide to commit themselves. In particular to commit to conduct the proceedings in an appropriate manner, taking into account the circumstances of the case. This might mean adopting an evaluative or facilitative mediation model, and other apt intervention.

I believe that where construction and engineering disputes revolve around matters of fact, the evaluative mediation model often works best, and it is construction and engineering professionals with practical hands-on experience and knowledge who are best placed to fulfil the mediator role.

Recently I was appointed by the International Centre for ADR (“Centre”) of the International Chamber of Commerce (“ICC”)  as a mediator in a multi-million US $ engineering dispute, which resulted in a settlement. Culturally different, the parties asked the ICC Centre to appoint an engineer mediator, with cross border mediation experience, and with particular construction, commissioning, and operation expertise. The mediation agreement required that where the parties failed to conclude an agreement within the time allowed, the mediator would issue a non-binding proposed solution to the dispute. One of the important factors that helped the parties move from entrenched positions was a robust application of the evaluative mediation model. For more information click here.

Contributor: Niall is Chair of the CIC Adjudicator Nominating Body Management Board. He is a Chartered Arbitrator, Building Services Engineer, Mechanical Engineer, Information Systems Engineer and Chartered Builder. He provides arbitration, adjudication and mediation services in commercial technology, engineering and construction disputes. https://www.linkedin.com/in/adjudicator

 

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Hidden Fear - raising awareness of how architects, planners and designers can help sufferers

Michael Kindred

Retired to France, 80, and still a games inventor and writer

Have you ever met anyone who has a phobia of getting trapped in a rabbit warren of corridors in a building, or cannot use a toilet that has a door that closes automatically, or that has to be locked?  I'm talking about claustrophobia and I have a rather high degree of it. When I'm away from the house for a longish period, I make plans for coping with the need for a toilet, and if I'm in an area with which I'm familiar, I know where my user-friendly loos are.

I wonder if you know of anyone who has an intense fear of coping with crossing bridges, or going up above ground floor in high rise buildings?  How about yourself?  I'm referring to acrophobia, and I'm really scared of heights and edges. I started my working life as an articled pupil in an architectural practice, and I had several heart-pounding moments during site visits!  Eventually I gave up trying to qualify as an architect and became an inventor of board and card games, and an author.  Much safer!

Acrophobia and claustrophobia are the  two main phobias which cause people difficulties in encountering the built environment.  The other condition which can cause difficulties is General Anxiety Disorder (GAD). Most people are reticent about talking about their phobias, out of shame, embarrassment and/or guilt. The estimated number or people with some degree of acrophobia in the UK is15,000,000 and the estimated number or people with some degree of claustrophobia in the UK is 6,000,000.

This is why I produced the free publication ‘Hidden Fear’.  It's origins began many years ago when I wanted to write about many scary encounters with buildings and other structures, which I and a lot of other phobic people had experienced.  Eventually I was very pleased to have an article on the subject published in the Architects' Journal in 1997 but it’s only in the last two years that I have tackled this final stage.

A lot has been done for people with physical disability, and I hope much more will be done.  However, since I wrote the article which appeared in the Architects' Journal, not a great deal has happened to help make buildings and other structures more user-friendly for people with hidden fears.

Through Hidden Fears I have made a list of suggestions to try to raise awareness of the issues surrounding phobias and GAD.  They are deliberately offered as suggestions, because I realise that the Building Regulations and many other legal requirements have to be adhered to by planners.

My hope is that eventually this topic, albeit very small, will become a part of the training of students of architecture, planning and design to help make our places truly inclusive.

Contributor: Michael Kindred is retired and still a games inventor. He is helping to raise awareness of hidden fears in relation to the built environment.  You can download a copy of Hidden Fears by clicking here and for further information please contact Michael on mike103.kindred@gmail.com

 

 

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Disability in the workplace

Catherine Cobb BEng (Hons) TMICE MIHE

Traffic Signals Graduate Engineer

Amey

My name is Cath and I’m an Engineer…a disabled engineer at that. I lost my left leg to cancer at the age of 7, and from the day they gave me my very first artificial leg I knew what I wanted to be when I grew up.

But I encountered barriers when pursuing my goals.  my first barrier was school, I went to see my school careers advisor for him to turn around to say ‘ahhhh Cath, you have 2 options, the first option it secretarial work so you can sit down all day or you can go on benefits and let the state keep you’.  This just made me more determined to be an engineer. 

I applied for many jobs only to be told ‘oh I couldn’t possibly employ you, you haven’t got very nice legs’ or ‘can you carry the tea?!’.

Working in a machine shop in a male dominated industry was also challenging, I would be expected to do more than my male counter parts plus they would ask me to fetch and carry things that were far too heavy for me, but I did it none the less. Why they wanted to break me was a complete mystery to me! I only wanted to work with them as an equal.

Working at Amey turned my life around, I told them at my interview that I was disabled and they never blinked. They are the only company that I have worked for that have helped me in every aspect of my career with them. 

Companies could do more for the disabled employees if they literally just sit down with them and just talk, ask them what needs they might have. We don’t bite honest!

Companies benefit from employing disabled people as we see things in a way that others don’t, we can see where the hazards are and how to deal with them quickly and safely.  Disabled people show true commitment to their employers and continue to do so every day as they are grateful for the opportunities they have been given but to be fair you should overlook their disability and employ them on their merits, as Amey did with me.

I asked a colleague of mine what it was that I brought to the company, she replied…’you, just you, I don’t see you as disabled’.

Have discussion groups say once a month to highlight if there are any problems that need addressing. Perhaps the disabled person to keep a log of things they struggle with, I know I have a problem carrying my laptop to which I did talk to my manager about, it was sorted immediately. Companies could also consider support groups of a variety of disabilities, Limbless Association for example.

Having a confidant helps me in my work place, someone I know I can talk to honestly and openly if I have a problem. Companies would benefit in training staff in how to recognise when someone is struggling as most disabled people are stubborn and will bottle their feeling up inside so they don’t want to cause a fuss.

As an Amey Scope Ambassador as part of the ‘End the Awkwardness’ campaign my role is to educate people on how to approach a disabled person and how to talk to them…quick tip…talk to them just the same as anyone else! 

If I can inspire just one person to achieve their goals by my life experiences then it’s all been worth it. Some people think they lose a limb that their life is over… it’s not, it’s the start of a brand new one… I don’t consider myself as disabled, I’m just Cath with a piece missing! (not necessarily my leg!).

Contributor: Catherine Cobb is a Traffic Signals Graduate Engineer at Amey.  Catherine is also an Amey Scope and Inclusion and Diversity Ambassador.

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Adjudication - evaluating your risk

Niall Lawless 

Chartered Arbitrator and Engineer, Adjudicator, Mediator

Before commencing adjudication, you should audit your adjudication risk. Risk audit is a process, which helps you make sensible commercial decisions. It highlights risks, their nature and scope, and allows you to determine how to prevent or reduce the risks.

One way to evaluate adjudication risk is to use a decision tree. Widely used in engineering, a decision tree can help you decide the dispute resolution strategy most likely to secure the best financial outcome for you. Graphical representation of risk helps you to make a reasoned assessment of the adjudication outcome, and allows you to compare that outcome to the costs you will incur in adjudication, and to any settlement offer. If you have suffered a loss of cash flow because of non-payment and invested in preparing a detailed claim, there will always be a maximum recovery amount. The maximum is the total of the quantum of all the items claimed without deductions. It is natural for senior management to focus on the maximum amount possible; this is the wrong approach. Experience shows that “independent experts” often provide different credible quantum calculations, seemingly underpinned by objective standards. The maximum amount is only ever an aspirational figure, and to imbue realism I recommend the use of a decision tree to calculate an “expected cash equivalent” (ECE). Competent mediators will use the decision tree method, or a variation of it, to help destabilise the parties and move them from entrenched positions.

In an adjudication concerning the modernisation and installation of lifts, the Referring Party said that it was entitled to additional money because of 17 variations. The Responding Party said that it was entitled to deduct money because of defective and incomplete work. Figure 1 shows how a decision tree can be used to chart the lifts dispute. The Referring Party said one variation was for Lift Builders Work, another variation was for dealing with Inherited Faults, etc. The Responding Party said that it wanted credit for Unfinished Items.

To grow the decision tree, each variation becomes a branch of the diagram, and determines the likely ECE based on statistical probability. Each branch of the decision tree represents a monetary decision event. The tree structure links the outcome of occurrences, and shows how one decision leads to the next. The use of branches indicates that each variation or deduction is mutually exclusive to another.

The efficient and normal way for an adjudicator to consider variations or deductions is first to decide liability and then to decide quantum. If the adjudicator decides that there is no liability, there is no need for him to look at quantum. However, for you, once the branches are in place it is easier to populate decision tree information starting with quantum and then moving to liability. In the lifts dispute the Lift Builders Work variation has a possible high valuation of £40,000 and a possible low valuation of £10,000. You assess that there is a 75% (0.75) probability that the adjudicator will decide the high valuation is correct, and there is a 25% (0.25) probability that the adjudicator will decide the low valuation is correct. Factoring the high and low valuation with their associated probability leads to a Net Quantum Outcome of £32,500. Often the decision tree has three sub- branches representing a high, medium and low valuation. Whatever number, it is essential that the probability of the branch events occurring always add to 100% (1.0).

 

 

 

 

 

 

 

 

 

 

 

Figure 1 Decision Tree in relation to the Lifts Dispute

To make the decision tree robust it is important to support each probability with reasons. Intuition is not a reason. Not preparing a full list of reasons makes the decision tree branches brittle, and is a common decision tree malady. If you identify the reasons why the adjudicator will decide that the low valuation is correct, you are identifying the scope and nature of the risks that you face. Risk is a measure of the probability and severity of adverse effects. As you may be able to do things to reduce the risks, change the risk consequences, or share the risk with another party such as a sub- contractor, there might be a sequence of linked dispute decision trees. Decision trees can be drafted using paper and pencil, by using a PC based spreadsheet such as Microsoft Excel, or proprietary low cost decision tree software. Using a spreadsheet or software makes it easy to update the decision tree quickly when there is new information that changes your assessment of branch risks or outcomes.

Linked to the Net Quantum Outcome is the likelihood of the adjudicator deciding that one party or the other has liability for the variation. You assess that there is an 80% (0.80) probability that the adjudicator will decide that the other party is liable for the Lift Builders Work variation, and a 20% (0.20) probability that you are liable. If the adjudicator decides that you are liable, you get nothing. Multiplying the probability 80% (0.8) that the other side is liable, by the Net Quantum Outcome, £32,500 gives the Lift Builders Work variation ECE of £26,000. Populating the Figure 1 decision tree with the Lift Builders Work and Inherited Faults variations, and the Unfinished Items deduction gives an ECE adjudication outcome of £37,000. This contrasts starkly with the maximum, amount possible £64,000.

Each party might spend £15,000 in claims consultants and lawyers’ fees to assist it. Except in very limited circumstances, in the UK a party’s costs in preparing for and participating in adjudication are not recoverable. However, the adjudicator could decide that you should pay all of his fees and expenses, or a percentage thereof. Based on the above, if the ECE adjudication outcome is £37,000, and your adjudication professional fees budget is £15,000, irrespective of whether you are risk- adverse or not, accepting an offer to settle for £22,500 makes sense. This would give you £500 more than the ECE, and you can invest your companies’ time pursuing other more profitable opportunities.

If you are adjudicating in a jurisdiction such as Malaysia, where the party’s costs in preparing for and participating in adjudication are recoverable, then not accepting an offer of £37,500 leads you to liability to pay the other parties’ costs, which if not taxed, could reduce your net recovery to £37,000- £15,000 = £22,000.

Contributor: Niall is Chair of the CIC Adjudicator Nominating Body Management Board. He is a Chartered Arbitrator, Building Services Engineer, Mechanical Engineer, Information Systems Engineer and Chartered Builder. He provides arbitration, adjudication and mediation services in commercial technology, engineering and construction disputes. https://www.linkedin.com/in/adjudicator

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Inclusive Environments: Learn more about the new British Standard

Julie Fleck OBE, MRTPI

British Standard Committee B/559 Member

A new British Standard has been published to help built environment professionals create an inclusive environment for everyone – this is not just a moral or social issue but a statutory duty

We learnt last summer of the stark reality that, despite years of antidiscrimination legislation, disabled people are still finding their lives needlessly restricted by features of the built environment. The Women and Equalities Committee Inquiry into Disability and the Built Environment reminded us all that inclusive design is not just a nice to do. All built environment professionals, through the critical role we play in planning, building and managing our towns and cities, have a statutory duty to ensure that disabled and older people have the same opportunities as non disabled people to live full and independent lives. We as must all respond by ensuring that we no longer allow barriers to inclusion to be designed built or maintained. 

Do you have the skills and knowledge to plan to include?

Do you have the technical knowhow to judge whether a development proposal will provide an inclusive environment or not? Do you know whether you overlook the critical detail that will make a building or place easy and comfortable to use?

We are getting better at assessing wheelchair accessibility, but do we really understand how to design buildings and spaces that are accessible and usable by blind and partially sighted people, or by people whose walking ability is limited or whose perception of space requires legible routes and predictable layouts. With the loss in many local authorities of the expert access officer on hand to ask, we all need to recognise what we don’t know and brush up on our technical skills.

A new British Standard

If you need to refresh your skills, the new British Standard, a revised and updated version of BS 8300:2010, provides an opportunity for you to gain a greater understanding of inclusive design and help you ensure that your development adequately addresses accessibility.

Published in January, the Code of Practice BS 8300:2018 Design of an accessible and inclusive built environment is divided into two parts. Part 1: External Environment explains how the external built environment, including streets, parks, landscaped areas, the approach to a building and the spaces between and around buildings, can be designed, built and managed to achieve an inclusive environment. It complements and is intended to be read in conjunction with Part 2: Buildings.

Advice given in Part 1 incorporates material relating to the external environment that was in the original BS 8300:2010 but it has been expanded to include wider aspects not previously included, such as lighting, assistance dog toilets, water features and public art. Advice is also given for specific locations such as access to beaches, play areas, parks and gardens, and nature trails.

Part 2 has updated and expanded the advice on nearly all aspects of the accessibility of buildings. Although the standard recognises that more research is needed before comprehensive advice can be given to address ‘Designs for the Mind’, the new code does include advice on, for example, quiet spaces. This includes when and what to provide in a dedicated room or space where people can find peace, calm and tranquillity in order to manage sensory / neurological processing needs or spend time in prayer or contemplation.

Integrating inclusive design principles into the development process

For the first time, the British Standard has included advice on how to integrate inclusive design principles into the development process. Recognising the importance of addressing access and inclusion from the outset of any project it recommends, in Section 4, the development of an Inclusive Design Strategy as part of any strategic vision, with the principles of inclusive design embedded into the initial concept brief. Budget estimates, procurement processes and development agreements should make explicit reference to meeting best practice, helping to establish the principles of an inclusive development prior to the drafting of master plans and outline designs.

This should make it easier for designers to demonstrate how access and inclusion has been addressed in the Design and Access Statement submitted at planning application stage. If the commitment to an inclusive development process has been championed by the developer from the outset, monitoring compliance with best practice standards throughout the construction phases should also be easier and more transparent.

The masterplan and outline planning stages provide the opportunity to address the accessibility of the site and building layout. Section 5 sets out guidance on site planning, the position of buildings and their features, navigation, orientation and way finding, the legibility of space, and the principles of two senses (audible / tactile and visual).

Early consideration of the impact topography and the location of buildings across the site, the position of entrances and other features and how they are arranged can help to maximise their accessibility.

If you want to hear more about the new BS 8300:2018 register here for the CIC Inclusive Environment Briefing February 22nd at the RICS Headquarters in London.

Use the advice and guidance in BS 8300: 2018 and help make inclusion the norm not the exception

Contributor: Julie Fleck OBE, MRTPI is the RTPI representative on British Standard Committee B/559 the committee responsible for the development of BS 8300. 

 

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Carillion Liquidation - Steps for Creditors

James Hutchinson

Partner

Beale & Company

A number of companies within the Carillion group have been placed in compulsory liquidation. The Official Receiver has been appointed as liquidator, with support from PwC. It has been confirmed that there is no prospect of any return to shareholders.

Given the size of Carillion, the UK’s second-biggest construction company, with 43,000 employees and contracts on a wide range of projects, including a number of flagship infrastructure projects, this will inevitably have a significant impact on the UK construction sector as a whole.

Official advice from PwC is:

Unless advised otherwise, all agents, subcontractors and suppliers should continue to work and provide goods and services as normal, under their existing contracts, terms and conditions. You will get paid for goods and services you supply from the date of the Official Receiver’s appointment onwards. Over the coming days we will review supplier contracts and we’ll contact you concerning these soon. Goods and services you supply during the liquidation will be paid for. A letter will be sent to suppliers shortly containing further instructions.”

Our view is that any firm that has exposure to a Carillion group company must carefully assess its position. PwC’s statement that “you will get paid for goods and services” only applies for work from today. A creditor might be in a better position if it were to terminate its contract (though this will depend on the termination provisions and its particular circumstances).

We suggest the following:

1. Immediately conduct an internal review of your exposure to Carillion, its subsidiaries and related joint ventures.

2. Collate all contractual documentation to enable you to review your legal options.

3. Be extremely cautious if asked to enter into a new contract with the liquidator:

(i) pay close attention to the contractual terms, and consider whether to enter into the contract at all;

(ii) seek to negotiate favourable terms around payment: ensure that the payment timeframe is short, that you have a right to suspend and terminate for non-payment, avoid granting the liquidator/Carillion the right to set-off your fees against amounts due under other contracts, and if supplying materials, incorporate an effective retention of title clause; and

(iii) avoid agreeing contractual novation provisions, or if these are incorporated, seek to incorporate a requirement for your consent to novation of the contract.

4. If already in a contract with Carillion, ensure that payment notices are served on time. This is essential for maintaining your contractual entitlement to payment. If you are not paid, consider whether you have a right to suspend for non-payment or under contractual insolvency provisions.

5. Keep a close eye on developments, as these may occur rapidly, PwC have set up a website, https://www.pwc.co.uk/carillion, and you should monitor this as well as the news.

6. Where collateral warranties are demanded by third parties on existing contracts where you are employed by Carillion, carefully consider whether you are obligated to grant these, as you may be able to resist providing them if you are not paid.

7. There may be an opportunity to renegotiate unfavourable contractual terms with the liquidator or if a new entity buys a part of the Carillion business with which you have contracted.

8. Depending on your contractual terms, consider whether you can suspend any intellectual property licences. This might put you in a strong negotiating position with the liquidator.

9. Consider whether there are any contracts that you may wish to ‘take over’ from Carillion; if so, approach the liquidator to discuss.

10. Where you have appointed sub-contractors on a Carillion project, make sure you review those terms and consider what action needs to be taken.

Contributor: James Hutchinson is a Partner at Beale & Company. If you have any queries in relation to the above, or any concerns in relation to the Carillion liquidation and issues arising out of it, please contact James on +44 (0) 20 7469 0408 or at j.hutchinson@beale-law.com.

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Climate Change & Project Managment: Re-Thinking the Relationship

Peter W.G. Morris

Emeritus professor of construction & project management

University College London (UCL)

Climate Change is one of the biggest challenges facing mankind, but what is the profession of project management doing about it? There are important exceptions but by and large the profession is fairly quiet on the subject. In my new book just published by APM (November, 2017), Climate Change and what the project management profession should be doing about it – a UK perspective, I argue that project management has a potentially significant role to play in reducing the causes and consequences of Climate Change.

I begin by noting the difference between Sustainability and Climate Change. Sustainability has become a catch-all for actions to do with saving the environment. It actually refers to the capacity to endure. Climate Change speaks to a broader, more urgent, potentially catastrophic set of factors. Over the last 10 years Climate Change has become increasingly accepted as a critical challenge to our world and to us, its passengers.

I begin by listing the effects of rises in the Earth’s ambient temperature above pre-industrial levels of 2, 3 or 4 or more degrees Celsius. The impact will be significant and dramatic yet, although there was jubilation the UN meeting in Paris 2015 where specific targets were agreed, actions to address how they would be met were left to individual countries. Follow-up is being done in a very weak and decentralised way. The project management profession, as the major discipline for managing change, should surely have something to contribute that addresses the situation more effectively. After all, over 20% of GDP is organised on a project basis. It's partly our own fault: there is next to nothing in the literature on how project management can help ameliorate the causes or consequences of Climate Change.

Thinking of what can be done, two fundamental practices seem missing:  We await the opportunity to explore with the UN how these practices can be deployed. The situation technically is not unlike the Apollo Moon program of the 1960s. The energy there was focused and managed. With Climate Change we have yet to organise as effectively.

But it's not as though nothing is being done. In fact, project, program and portfolio management is already working to reduce greenhouse gas emissions, the primary source of temperature rise, in all kinds of ways. Buildings are being modified; new products are being introduced; fresh policies and regulations are being applied. Behaviours are key.  Unfortunately however, the behaviour changes required to achieve the UN targets are so major that one must doubt whether the goals are realistically attainable.

But the profession can help in other ways. We can help by managing projects that will deliver new forms of mitigation, for example fusion based electrical power generation and carbon capture and storage. These are still a long way off however: the R&D required is enormous and the track record of achievements to date, worryingly slight. Renewables offer an attractive alternative but rarely exceed 30% of the power supply mix. This is considered too low, at least by the British Government, and in the UK at least we are thrown back on nuclear fission, and gas. But again, project management is not delivering as hoped – often as result of technology, as with the recent collapse of Westinghouse and as potentially, I believe, with Hinkley Point C with the government's procurement strategy resulting in highly risky technology being used).

In fact, in the built environment as a whole, the roles of the sponsor and other stakeholders are central, whether for big projects or for portfolio-type decisions, as, for example, in addressing flooding. Thus, managing the institutional contexts within which projects and programs have to operate often requires a new type and level of skill. In effect, the book advocates a model of project management that involves a more probing, creative, front-end oriented approach – an approach fit for tomorrow’s challenges as well as today’s.

There are plenty of opportunities, and needs, for project managers and the project management profession to stand up, claim the right to direct and influence activities, and perform and contribute to the development of a lower emitting world of greenhouse gases. But to do that many of us will have to stand up and be counted, making difficult decisions, and suffering adverse commentary. Looking at your children and neighbours, one can't doubt that this is the right thing to do: it's the only game in town. Let's act professional and play hard before they take our pitch away.

Contributor: Peter W.G. Morris is emeritus professor of construction and project management at University College London (UCL). He was head of UCL’s Bartlett School of Construction and Project Management between 2002 and 2012. During this time, the school tripled in size.

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One Building Surveyors honest view of how things aren’t progressing

Bairbre McKendrick

Building Surveyor

Bradley Mason LLP

The BEPE project aims are clear, more training and education is need to improved inclusive design knowledge and skills would make a positive impact on the work surveyors and designers produce.  This in turn has an impact on the independence of building users whatever their access needs may be.  But is the scale of the problem bigger than envisaged? And is the willingness of some working in the industry to upskill and change how they work lacking?

When I started my journey into the area of Inclusive Environments it was 1997 and I was working for a major retail bank that had a profile and reputation to protect and enhance.  The British Banking Association provided us with guidance and the business was committed to respond to the ‘new’ legislation; the Disability Discrimination Act 1995.  All areas of the business were responding; changing ATM’s and developing telephone and then internet banking.  Budgets were of course an issue and works were phased while in some urban areas providing a number of accessible branches i.e. not all was thought to address our duties as a Services provider.

I left the bank in 2005 and can see no evidence of an access improvement programme continuing, indeed sadly closure programmes seems to be prevalent. In a small town near where I live Natwest, HSBC and Barclays have all closed and the vital services provided by the post office, which are also under threat, must certainly be protected. Back in the late 90’s the Post Office was one of the larger service providers to go out and spread the word that access must be achieved across their network, designing  a wheelchair accessible counter unit. However, my local post office which relocated about 3 years ago is now in a building with stepped access and has a wooden ramp which they use as and when needed – their previous location had level access. This unfortunately all points to the Post Office neglecting their commitment to access.

Is anyone currently procuring retrospective access projects for example relocating entrances to a level area, enlarging doorways and fitting automatic door gear?  Are occupiers seeking accessible units? I would advocate that all service providers write this requirement into their policies and when their typically short 5 year leases are up for renewal they use this to relocate to a more accessible unit or negotiate with their landlord to make the necessary improvements to their current unit.   I recently read some letting particulars for a city centre office building with retail at ground level. Mention was made of ‘DDA complaint’ toilets. This tells me letting agents haven’t noticed that the DDA was absorbed into the Equality Act in 2010 so is no longer with us and indeed their clients haven’t noticed or don’t care.

The lack of well publicised relevant case law has meant that businesses have left their access projects to gather dust. The deadlines which the DDA set out were easy to grasp and like the Millennium bug the fear of the unknown meant that resources were committed to the project. Now there is no urgency and little or no interest.  My downbeat assessment is that the strategy of ‘doing nothing’ is seen as low risk and this wins the day. However, as the evidence provided to the Women and Equalities Committee earlier this year in their Inquiry into Disability and the Built Environment demonstrated – disabled people still face challenges when accessing and using homes, buildings and public spaces. This constitutes ‘an unacceptable diminution of quality of life and equality’ – not good news for the construction industry more than 20 years after the DDA made discrimination illegal.

I would like to be more optimistic in relation to new schemes but again the evidence is that old habits die hard. Why are designers still wedded to the notion that all handrails must be brushed stainless steel and WC cubicle doors should be hidden along a wall of usually white glossy panelling?  Public seating which should be for all is another area where standards are ignored.  

Where designers are proposing such schemes and Approved Inspectors are appointed I feel strongly that the latter should not be shy in pointing out the failings that contravene Approved Document M (ADM). I spoke to an Approved Inspector recently on this issue and they confirmed that they had tried to enforce ADM - they raised the lack of visual contrast in a toilet. ADM paragraph 5.4 k requires; “the surface finish of sanitary fittings and grab bars contrasts visually with the background wall and floor finishes, and there is also visual contrast between wall and floor finishes”.  The Approved Inspector asked that the walls be redecorated but said they were left with the impression that at the next redecoration this would be undone.

Maintenance is the poor relation in property but if this is undertaken without care and attention then the original design is compromised and any good access features can be lost. Every time you can’t take the lift as it is out of order consider how lucky you are to be able to use the stairs. When an access platform is out of order a wheelchair user is excluded from the building. Yet such features may be chosen as a solution without suitable consideration given to maintaining this feature and the associated costs. Educating building managers is a must; they are on the ground and see what is and is not working; but if all their choices are made based on costs then access will be relegated to ‘nice to have’ status. Businesses are losing out however, as disabled people will take their purple pound (estimated at £249 bn) and spend it elsewhere.  

Contributor: Bairbre McKendrick is a Building Surveyor for Bradley Mason LLP

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How can we lower suicide in Construction?

Andy Dean

Managing Director

BS2B 

If you're reading this then congratulations you are about to enter the realms of supporting your mental wellbeing, being able to better resource yourself, increase productivity, meet the deadlines and have healthier handovers. All that, and enjoying a happier life too!

When the hours are stacking up, the margins are getting tighter and with the pressure increasing, how do you manage the stress this causes? How do you not take this home with you? And equally how do you not take the stresses and strains of home life to work?

Well, good news, the impact this is having on the mental wellbeing of our industry's workforce is finally being recognised. 1 in 4 of us will have a mental health issue during the course of the coming year. More than half of those in the trade - 55% - have suffered mental health issues, more than double the national average according to mental health charity Mind. So, look around you and start counting. What that really means is there are a lot of people who for some reason can't, won't or find it hard to talk about what's going on for them. They are not able to share how they are feeling because there's been little or no support in construction.

Three in ten, 29% of construction workers have taken time off due to stress and similar issues but only 32% of these told their boss the real reason for their absence.

Back in September 2016 I was interviewed in London by the Financial Times on the suicide percentages rates within the construction industry. The statistics show the suicide rate is the highest of any trade in Britain – it's 63% higher than the national average!

I found it interesting that the Government launched a scheme for the younger generation through a National Citizen Services program this provides information on mental health that offers services for young people to support and help improving their mental wellbeing. This could lead to a whole generation of people being able to talk about the struggles and challenges they face in their day-to-day life in a more open and honest way.

The challenge we face in our industry is how we build an environment where we can talk about our inner wellbeing, 'our feelings' open and honestly. There are plenty of tools that make life easier on the outside but where do we find the tools that make life easier on the inside?

We have a chance to draw up a new set of plans for this one, creating a culture change in our industry where the stigma around sharing how we feel, talking about our wellbeing, our feelings isn’t seen as a sign of weakness and not being able to cope.

How ridiculous is it?
Why would young people be attracted to working in an industry that suffers from a perceived macho stereotype and a put up and shut up attitude. Surely, we in the industry have a responsibility not just to ourselves but to those inheriting it to create a legacy and a working environment that sees, hears and values the person and not just the job role.

When we look back over the last fifty years construction has suffered both up's and down's, boom and bust. From the mid-1960s to the current day there has been a continuing increase in deindustrialization, which will continue to challenge the construction industry. Building methods have changed, technology has changed, the workforce has changed, but predominantly the attitude towards mental wellbeing in construction hasn’t. Surely now is the time for a culture change.

I know the stress, suffering and hardship those individuals working in construction during the down times went through, I was one of them. I lost friends to suicide and saw the impact it had on their families and friends. What support was there for them? And I can understand how those circumstances created and shaped our current culture and working practices of today.

So, what do we need to learn from history?
Well, in 2017 we have to understand that if we only focus on job roles and productivity without supporting the inner wellbeing of the individual, we will continue in creating an undervalued and unsupported workforce and an industry where you’re only as good as your last job.

What is self-awareness and mindfulness all about?
We want to do this because it will create a better industry a bigger industry, make it a place where people want to come to work because they feel supported, feel seen heard and valued. Lets' all create a better work-life balance and understand the positives that creates by looking after each other together.

Benefits of Mindfulness
If we continue to create an ever more stressful working environment that people survive in rather than thrive in, will not encourage new people into the industry and stop skilled people leaving. Either leaving voluntarily, because of the pressure, a breakdown or even worse suicide. The job role has to include the whole person, of course there are going to be challenges and stressful days, stressful weeks but what is most important is how we manage those times? Traditionally the industry hasn’t given enough support or been given enough in way of support to make a real difference. But, this is changing. There are those within the industry that are taking on the responsibility of creating and providing support.

Mindfulness and Self awareness are the foundations to build on, to meet the challenging experiences both in our personal and professional lives. The word 'Mindful' in Latin is a derivative from 'memor'. Which is a theory on 'man being more' grateful thankful thoughtful. The word self-awareness is a derivative ‘conscientia’. So your conscience or knowledge, or remorse, is key factors to becoming self aware

Contributor: Andy Dean heads up BS2B a not-for-profit training organisation, founded by builders, company owners, developers and therapists with a combined experience of 130 years in construction. This gives BS2B an expert understanding of the industry’s language, challenges and needs. BS2B run an online Self-Awareness Course which focuses on promoting mental health through Inner Wellbeing tailored to the industry.

 

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How can we hand over projects better?

Owen Anthony, Project Manager and Daniel Nicholls, Research Manager, APM

Posed with the question how can we hand over projects better?  Handing over projects from the project phase to the business as usual environment is often perceived as the end of the job by project practitioners and the start of the job by the end users who will be assuming the management responsibility afterwards.  This view makes a number of assumptions with project handover being an often neglected area for project management which given that it affects a multitude of projects across all business sectors makes one wonder why there is so little coverage of this topic to date.

How do we improve the transition of a project from the project team delivering in a project life cycle to the end users’ business as usual activities, to ensure the realisation of the benefits the project set out to achieve?  These questions pose fundamental questions to anyone involved in commissioning, delivering or receiving the outputs of projects particularly in the construction sector where there is an industry drive to better manage transitions and design and deliver buildings properly. Initiatives such as the Building Services Research and Information Association (BSRIA) Soft Landings and Government Soft Landings as well as an increasing focus on benefits realisation are raising the profile of the transition from project phase to business as usual and the construction industry is increasingly being required at procurement stage to demonstrate commitment to improved knowledge transfer and handovers.

A a practitioner, Owen has first-hand experience of projects in the built environment and thought it important to capture lessons learned and success factors from projects that have completed that transition (some more successfully than others) and share these in the hope that it will help more projects to handover successfully. 

One of the challenges we had with the research was trying to obtain participating organisations and individuals that provided a good cross section of the UK project profession that enabled handover to be assessed across a range of business sectors.  Getting the input of some organisations was sometimes difficult - unsuccessful project handovers could be seen as bad publicity and have negative commercial implications and successful recipes for handing over projects can be viewed as a unique selling point or area of commercial strength that provides competitive advantage.  One of the difficulties of any study of this nature is getting participants to consider how it could work better rather than how things have gone in the past.  A final challenge we faced was isolating which factors in the project lifecycle have an impact on handover specifically, as opposed to just good project practice, which was easier said than done.

Not all projects hand over successfully. This is frequently attributable to many factors. We hoped that this research, drawn from the experience of previous projects, identifies both pitfalls and good practice and distils them into guidance that practitioners can adopt for their own projects. Learning these lessons helps to mitigate the risk of poor handovers and improve the likelihood of a successful project handover.

Drawing on input from a diverse and wide array of notable organisations including Civica, the Infrastructure and Projects Authority, Laing O’Rourke, Mediacity/Peel Holdings, Transport for London  and Vinci Construction amongst others some key learnings were identified.  Firstly, you the need to establish a common data environment.  Secondly, work with the ‘end users’ to ensure the right people are being trained at the right time, in the most effective manner, to support the transfer of knowledge and responsibility. Thirdly, produce documents that are meaningful and useful to the end users and finally conduct dry runs to simulate the operational phase.

The research identified 12 factors to ensure effective handover:

Commercial/contractual

  1. Requirements should be written into tender documentation/contracts in as much detail and as specifically as possible including engagement requirements, data environment and any standardisation of equipment or product that the client requires.
  2. Whole life cost must be considered if at all possible.
  3. Incentivise success. If a scheme is well delivered, this should reward all parties.

Process

  1. Handover is a process not a date. Planning for it should be from the start of the project and it should be viewed as an incremental transfer of knowledge and operation from project team to business as usual.
  2. The benefits and deliverables must be measurable and communicable from the start. Ask why are we doing this project and how will we know when it is done?
  3. Involve end users from the outset. Through stakeholder analysis, understand who will benefit from the project, who will be required to facilitate the delivery of the benefits and how the project outputs will impact their role.

Data and knowledge transfer

  1. Documentation must be written for the end users. It may require different sets of documentation for different users but for documentation to support knowledge transfer it needs to be meaningful, applicable and relevant to the end users.
  2. Collate lessons learned as the project progresses. It provides more meaningful data for future projects, it can be tied to stage gateways or key deliverables.
  3. Agree the information requirements at the outset. This ensures all parties have a clear deliverable, know what is expected of them and work towards achieving the goal from the start of project.

People

  1. Often overlooked but put simply get good people on your project and keep them for as long as you are able.
  2. Definition of stakeholders should be carried out throughout and in detail. Who will be impacted by the project and who is needed to make it a success?
  3. The client role is pivotal including client engagement.

The full report can be downloaded here

Contributors:  Owen Anthony is an experienced project management practitioner, who as well as being a Full member of APM is also a member of the Soft Landings User Group who acted as the study’s research lead.

Daniel Nicholls is APM’s Research Manager who commissioned the research study for APM and having been a project manager thought it important to help improve understanding around this often neglected subject. For more information on APM Research please visit www.apm.org.uk/research

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