Still, there's no doubt that adjudication is here to stay, and so the question arises as to what a party can do if it is on the wrong end of an adjudicator's decision and believes it has real grounds for overturning it on its merits.
Thankfully, parliament did not make the process final and binding in the sense that it is open to the parties to arbitrate or take the matter to court to overturn the effect of an adjudicator's decision.
Statistics suggest, however, that a relatively small percentage of disputes that have been the subject of an adjudicator's decision are referred on to another decision-making forum.
Many in support of adjudication argue that this demonstrates its success. Such reasoning is in large part flawed. The fact is that many parties aggrieved with an adjudicator's decision simply do not have the time, money or the inclination to take the matter further. This does not mean the process itself is a success. Quite the opposite.
We simply find ourselves back in the position that led to the need for adjudication in the first place; namely, that many parties balk at the prospect of having to pursue litigation or arbitration over a couple of years, incurring thousands of pounds in order to obtain redress.
So what can the party that is aggrieved with a decision of an adjudicator, is out of pocket to the tune of many thousands of pounds, and is concerned that the claimant in the adjudication may not be around in a couple of years' time do? It cannot adjudicate the same dispute again, but nevertheless still wants some swift justice.
Although there is no doubt that the courts (especially the Technology and Construction Court) are more streamlined than before, this does not necessarily allow a party to have access to swift, economical and efficient justice.
First, a party is likely to provide its claim in draft and proceed through a time-consuming and costly protocol (the costs for which are not recoverable) and thereafter may find its path blocked by mediation (whether by agreement or at the court's persuasion).
It is questionable whether mediation, following on the back of a bitterly fought adjudication, will be successful as parties may not be in the mood to mediate in such circumstances.
Thus, it is perhaps not surprising that contract drafters have set up procedures in contracts that enable a party aggrieved with an adjudicator's decision to take the matter quickly back before a decision-making body. One such method is fast-track arbitration.
Many people think that adjudication sounded the death knell for arbitration. Could it be primed for a comeback?
Parties can provide in their contract that in the event that either party is dissatisfied with the decision of an adjudicator, the matter can be referred to fast-track arbitration.
The parties can agree the procedure in the contract. They could agree, for example, that an arbitrator must make a decision within say, three months of his appointment – this would be a term of his appointment.
Such a procedure could provide for witness statements and expert reports in the usual way and a hearing at the end, and, unlike adjudication, disclosure of documents. The arbitrator would have power to award costs and the parties could even agree to limit the recoverable costs. Thus, the aggrieved party would have a quick and efficient opportunity to overturn the adjudicator's decision.
Fast-track arbitration is a fairer process than adjudication and it would be more likely that a decision based on the merits and legal entitlements of the parties would be reached.
Its presence in a contract might also serve as a deterrent to those companies contemplating bringing a dodgy claim, or ambushing their opponent in adjudication. Retribution could be just round the corner.
Nick Henchie is a solicitor at Mayer, Brown, Rowe & Maw. Email email@example.com