Let me start by saying that there are some excellent adjudicators around. However, there are two recurring themes in the criticism of poor ones. First, too many of them simply do not have the experience or training to decide complex disputes. Thus, the quality of decision-making is often lacking. Second, many adjudicators are overworked and under too much time pressure, leading to poor management of the process as well as poor decision-making. An adjudicator I spoke to recently admitted being involved in 10 adjudications at one time. In addition, there is now a breed of professional adjudicators who make their living entirely from the process, and who pay as much attention to their own interests as those of the parties. So what is to be done?
First, there should be a stronger vetting process for adjudicators. It is all too easy to get on a nominating body's panel of adjudicators with no real training or experience. This is the root of most of the problems. A typical area in which adjudicators fail is in the weighing and assessing of evidence. Further, many adjudicators you talk to confess to seeing their role as making a temporary decision that does not have to be based on fact, evidence or law, but can be based on gut feelings as to where justice lies.
Their reasoning is that a party unhappy with the "interim" decision can take the matter off to arbitration or court. Although this is true, it does not reflect reality, as adjudication has rapidly become, in most cases, the final say on the resolution of construction disputes. Therefore, it is crucial that the adjudicator reaches the right decision. Matters such as evidence, contractual interpretation and the law are vital, and adjudicators who are not trained in such subjects have no place on nominating bodies' lists of adjudicators.
Second, assuming that we weed out the bad ones, the system of appointment must still be looked at. Some good adjudicators known to me rarely get an appointment, whereas others may get several in a week.
More transparency is required and jobs for the boys must not be the main criterion of appointment. If there are 100 adjudicators on a particular panel in the London area, why should they not be appointed in turn, subject to their availability, rather like the cab rank rule for barristers? Good guidance would be that an adjudicator does not accept more than one appointment a week so that they do not have more than four on the go at any one stage.
It would also have been useful if the guidance had started by saying that an adjudicator should conduct each adjudication according to its nature, set a timetable and make directions tailored for it. For example, if the adjudication is for a small amount, say less than £50,000, the matter should ordinarily be dealt with on paper, often in well under the 28-day period. However, it is a fact that some adjudicators conduct an adjudication for £10,000 in exactly the same way that they conduct an adjudication for £1m.
A proper complaints process must be set up and adhered to. Many people have become reticent about complaining about poor adjudicators in case they get the same one again. It is only if parties register and elucidate their complaints that proper vetting can be carried out and quality control operated. A party that has complained against an adjudicator in the past should be able to veto their appointment in the future.
Finally, a note about reasons for decisions.
The guide says: "The possibility of receiving a request [for reasons] at a late stage during the adjudication, or even after the decision has been given, has caused concern among adjudicators." Why would this be so? As a matter of good practice, adjudicators should give reasons for their decisions, whether they are asked to or not, and good adjudicators usually do. Their decisions must be open to scrutiny. It is a sad fact that so many adjudicators are so unwilling to do this. What are they trying to hide?
Nick Henchie is a senior solicitor in the Construction and Engineering Group of Mayer, Brown, Rowe & Maw and can be contacted at firstname.lastname@example.org.