Privileged Communication
Privileged communication is a conversation that takes places within the context of a protected relationship, such as that between an attorney and client, a husband and wife, a priest and penitent, and a doctor and patient. The law often protects against forced disclosure of such conversations.
Recently, whilst assisting a Client preparing to enter a formal dispute resolution process, an engineer (let’s call him Hugh) expressed frustration at the process of obtaining expert reports in order to keep the information flow privileged. By necessity this meant all communications being channelled through a lawyer.
He noted:
“It would be a lot quicker if we could meet them down the pub for a Privileged Pint!”
Hugh’s observation reminded me of the importance of open communication for avoiding disputes occurring in the first place and when a dispute has arisen, the need for the parties to meaningfully re-engage to find a resolution. This is of course easier said than done which is one reason why construction disputes are so prevalent.
Bullfights
The construction industry is full of strong characters that need to have the last word and do not like to lose an argument, especially in front of other people. Project progress meetings are often more akin to bullfights than open discussions of project issues with the contract replacing the muleta or red flag to bait the other side.
This particular problem is one reason why the use of independent Contract Facilitators on major projects is being proposed. Contract Facilitation was a key element of AS 11000, the proposed new Australian Standard Contract designed to replace AS 4000. Unfortunately the contract ended up being tossed in the too hard basket as consensus could not be reached on this and other proposed changes to AS4000.
Whilst I believe contract facilitation is a good idea, I have a better and cheaper idea to resolve disputes – especially for smaller projects.
All contracts will contain a provision that a senior executive from each party is required to meet for a ‘Privileged Pint’ once a month. No minutes will be taken and all discussion about the project will be forbidden until the first drink is drunk, thus forcing the executives to engage on other matters such as family, sport, what’s on TV or more particularly – shared interests.
Once common bonds have been forged and Heineken has refreshed the parts that other beers cannot reach, any disagreements will seem more trivial and ways forward that much clearer.
Obviously, there are many (good) reasons why the Privileged Pint will never be adopted by Australian Standards as a recognised form of dispute resolution – not least the workplace health and safety issues – but the importance of open communication in the prevention of construction disputes cannot be overstated.
Chatham House Tea
Instead of a Privileged Pint why not try a confidential coffee or a Chatham House tea.
Alternatively try talking through a letter or email with the recipient before sending it or hearing someone out in a meeting rather than interrupting.
You are likely to find that these simple actions will improve relationships and reduce disputes.
Now I’ll drink to that!
Jon Davies
Principal of Brackenway Consulting
QS, Commercial Manager & Contract Facilitator