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7 Feb 2024 • Tom Haley

A dispute free future: does data science hold the key?

In a recent meeting, with the group commercial director of a leading specialist façade subcontractor, we were reflecting on a meeting we had just attended. When discussing how the meeting could have been better, we shared a view that there was no science behind what we were being told. This meant it was difficult to get to the starting line and explore the options for resolution because we spent most of the time checking, and cross-checking, the base facts and figures.

I reflected on that discussion, and the meeting, and it made me wonder how many disputes could be avoided if robust and accurate scientific analysis was available at the time issues arise. As part of our #thefutureofquantitysurveying mini-series I wanted to share these reflections because, for me, our collective future needs to be one where differences are expediently resolved, and our time is invested in the risk reduction, waste elimination and value enhancement.

The current state

I expect most have been there. The programme is starting to slip, additional costs start to be incurred and the blame game begins. Nobody wants to accept they are at fault in any way, so shots are fired. The letter writing war begins. Each side top trumping the other with the length of their letters, eventually getting to the point where they forget why they wrote to each other in the first place. It is a slippery slope.

The financial metrics start to suffer, and management start to ask questions. Again, there is a fear that accepting fault is owning up to failure. That failure could be detrimental for future employment prospects (pay rises, promotions, and bonuses etc) so let’s not admit we might be at fault to the people who decide our future.

The best thing to do is say that it is entirely, or almost entirely, the other side’s fault and convince the business to trade a position that reflects this sentiment. Yes, there may be a precautionary hint of liability but let’s not do anything more than that. After all, we do not have scientific analysis which tells us otherwise so let’s not admit defeat just yet.

The parties become entrenched. Business plans are set in stone and any future downward profit adjustment would need to be met by a similar upward profit adjustment. We don’t have any of those improvements to come, so we have no option but to fight. We invest in lawyers and experts who all try and pick the bones out of the issue to put the best case forward. The absence of contemporary scientific analysis is exploited by both sides who advocate the most favourable position for their client. The stakes increase as the costs increase so you convince yourself even more than ever that you must be right.

The dispute is not resolved through negotiation, so adjudication commences; we handover control of our fate to a third party selected by someone else to make a decision. The issue is complex, sometimes stretching months and years, but it’s ok because we are right, and we will prove it in this 35-day process.

We win. Joy, elation, ecstasy. We were right all along. How good are we!

We lose. It was a bad decision. It was the adjudicator’s fault. Even worse, we threaten to sue the adjudicator and / or not pay his fees (it happens, believe me).

Yet all through this process, we are missing the one thing that would have allowed the issue to take a different path: scientific analysis helping you understand whether you had any liability for the issues and, if so, the extent of that liability.

The future state

What if there was a different path? Maybe it doesn’t exist now, but the current state is not sustainable so, can we create a path to a dispute free future?

For me, improving contract conditions or dispute resolution mechanisms might help but I am never fully convinced that these issues deal with the root cause of the problem. Are we really reducing conflict by making contract compliance more administratively intensive? Do we think clarification from the courts, on how legislation should be read, reduces disputes? Or do these things, in themselves, breed more disputes?

What if clean and well-structured data was available to both parties during the performance of a project. The data is jointly collected and verified and, by connecting it to the agreed contract risk profile, recommendations are provided about liability. What if this enabled a rolling agreement on the issues giving certainty to both parties? What if generative AI could be asked these questions?

Bridging the gap

Admittedly, it feels like a pipe dream, and that we are a world away but are we really as far away as we think we are? The data exists because, one way or another, it is produced in the end for the purposes of submission to a third party for resolution. What if the thinking of specialist personnel (lawyers, experts etc) could be systemised and what if the data sources could be connected to produce high quality analysis? The service provision as we know it would shift but the specialism becomes real-time operation of the analytics machine rather than retrospectively turning the handle on poor quality data.

The barrier in my view would be whether parties were willing to be truly open source about their project data. Could you imagine businesses being willing to share their production data, progress information, cost data etc warts and all? There would need to be one hell of a brave pill created for that to happen and I just can’t see that we are ready to make that shift. The fear is crippling us, but this is driven by experience. The last time you were open and transparent the other side exploited it.

Maybe we are just not mature enough to make the shift from the current state to a more desirable future state? This is the core issue, before we even get to issues such as the integrity of data and how this is stitched together to provide a comprehensive picture.

Final reflections

I aspire to leave the construction industry in a position where this cultural shift has happened or, at the very least, the tipping point in the transition has been reached. It is sad to see so much self-generated waste in an industry that does so much good for society. Just think how many more schools or hospitals could be achieved with a shift in thinking and a redeployment of wasted effort to value-add activities.

Through my journey of these reflections, I started with the proposition that data science holds the key to a dispute free future, but people and culture that are the ultimate enabler. As a final reflection though maybe, we are locked in a chicken and egg scenario where transparent data would increase transparency and, therefore, improve trust.

No doubt my pondering on this issue will continue for some time yet.

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