First, he suggests adjudicators "do not have the experience or training to decide complex disputes". Some may interpret this comment as suggesting that only lawyers are properly trained to decide disputes. Determining disputes may involve different skills from the ability to formulate or advocate a claim, but that does not mean they cannot be learned. When the industry took back responsibility for deciding its disputes, it must have expected teething problems to arise. It is still early days for adjudication; to expect perfection of adjudicators now is optimistic.
The real problem is the time pressures created by having only 28 days to decide "complex disputes". This leads to poor quality decisions. A sensible time period to reach a decision is likely to increase the quality of those decisions. Adjudication is not being used for "making a temporary decision … based on gut feelings". We must give adjudicators a proper period to reach their decisions, whether or not they are temporary. Poor decisions are more likely to end up in litigation or arbitration.
Henchie's concern that "adjudicators are overworked" must also be linked to the unrealistically short time periods given to reach a decision. Most of this period is used up by exchanges of submissions and little is left for the adjudicator to make a decision. Adjudicators may seek to limit time for submissions but that leads to rushed submissions. This not only weighs the scales in the favour of the referring party (which has whatever time it considers appropriate to prepare), but leaves the adjudicator reaching a decision using poorly presented submissions.
Adjudicators can choose to sit down with each party after they have filed their submission in the presence of the other party (in an observer capacity only) and review the case. This allows the adjudicator to indicate further documents they want to see and which issues they think go to the essence of the case. By conducting this process separately with both parties, adjudicators can make sure that they understand both parties' contentions. Such a process appears eminently sensible, but is very difficult to achieve if the parties start out in the belief that the process is one of 28 days. In an industry where programming and preparation are so important, we have a time period for adjudication that inhibits both. Sir John Harvey-Jones commented: "The nicest thing about not planning is that abject failure comes as a complete surprise."
So does the current timetable really give either parties or adjudicator enough time to plan the process so that quality decisions are reached? When an adjudicator is asked to accept a nomination, they have little time to decide whether or not to accept. If they are one of the new class of "professional adjudicators", their caseload may only stretch at most some 28 days ahead. The tendency to say "yes" rather than "no" must be considerable. If adjudication was a planned process over, say, two or three months, then an adjudicator would be able to better assess whether to accept a further nomination.
The problem is exacerbated by adjudicators being on different nominating bodies' panels. Perhaps nominating bodies should ask any adjudicator they intend to appoint to disclose the number of adjudications that they have on the go and the stage they are at. It would be for the nominating body to act on that information.
A more reasonable period for adjudication would limit undesirable ploys such as "ambush" and "deluging", where vast amounts of irrelevant documentation are dished up. An adjudicator with a proper time to make a decision can assess how relevant the documentation really is.
Finally, a system of complaints with the ability to "veto their appointment in the future" is unrealistic. It would allow parties to complain after every adverse result. To allow a veto effectively finds the adjudicator guilty without a trial: if Henchie's solution was implemented, the party complaining would automatically succeed – hardly a way to ensure that we have adequate adjudicators. Further, if adjudication is here to stay, complaints could build up to the extent that one party may be able to delay appointment of an adjudicator for a considerable time, vetoing nomination after nomination because of a complaint made perhaps years in the past.
The cause of the problems is the adjudication system, not the adjudicators.
James Bessey is a partner specialising in construction dispute resolution at Hammond Suddards Edge, Birmingham.