Did you know there is also a fresh model in adjudication? Some of the original ideas haven't proved all that good. Actually some of those original ideas were mine, I think. Or at least, if they weren't, I thought they were. They weren't good ideas. In fact, some were downright silly. I wouldn't dream of doing adjudications today the way I did them five years ago.
The Technology and Construction Solicitors Association has realised that the job of adjudication requires special skills. In fact TeCSA frightened the life out of me recently. Would I like to become an adjudicator on the TeCSA panel? Yes, said I. Apparently this nominating body is willing to include not only solicitors but barristers, architects, engineers … even surveyors! "You have to come on our two-day course," they said. "Take a test or two," they said. "Answer a question or two," they said. "Pay £850," they said. OK, OK. I'll join in. Come the day, or rather, the two days, and it wasn't a course at all. At 9.25am on day one, we "course attendees", were sat at desks. We were told not to turn over the papers in front of us until 9.30 precisely.
Now what? Turning over the paper reveals a one-and-a-half-hour examination on questions of law. Hells, bells. This was no course. I was expecting a know-all lecture by some bighead like me, but nothing of the sort. The "course" leaders turned into invigilators. The paper was a full-blown law exam! Me, a barrister, answering law questions at 9.30 in the morning? I have never heard the like of that before. I nearly walked out – especially when question one stumped me …
Then, at 11am, these awful TeCSA prison guards set us another 90-minute exam. I had to answer damn difficult questions about the TeCSA Adjudication Rules. No, I couldn't look at the rules, said a heavy from Guantanamo Bay. Come 2pm, I had another grilling. This time I was cross-examined by two TeCSA torturers about "problems of adjudication". Hell, I was paying £850 to be beaten up! At least there was the "course dinner" to look forward to. I missed it. I was trying to answer the overnight exam paper. I was banged up. Day two of the course was better. The final exam paper allowed me five hours to read the problem about interpreting a JCT document and write an adjudicator's award.
Come 2pm, I had another grilling. This time I was cross-examined by two TeCSA torturers about ‘problems of adjudication’. Hell, I was paying £850 to be beaten up
TeCSA had spent two days kicking my tyres.
Do you like the new BMW 5, by the way? Not as pretty as my old model but technically much improved. What about the Merc range? My BMW salesman praises Mercedes: "They make very good trucks," he says. Hmm.
And what about this TeCSA torture? Easy really. The customer is using adjudication because it is a commercial winner. Contractors want answers to quarrels PDQ. They simply want a person from construction to decide construction disputes and do so on a 24/7 basis inside 28 days. Until the courts and arbitration wake up to this 24/7 demand, adjudication will be the model of the decade. It is the Beemer of the century. But the adjudicators have to be very good, not only at working days, nights, weekends, Christmas and Easter, but at knowing their construction law, knowing the business of adjudicating, knowing how to be scrupulously fair, knowing how to decide a dispute.
Tony Bingham is a barrister and arbitrator.