No job for an amateur

A wannabe arbitrator is best advised to acquire fellowship status from the Chartered Institute of Arbitrators. This body has been transformed in recent years into the professional association for arbitrators in the UK and, given its worldwide membership and structure, in many other places as well.

This position has been acquired because it now confers a well-recognised professional qualification and has developed training courses and fellowship status, which it both examines for and confers. For those in active practice as arbitrators, a system is now in place comprising annual compulsory professional development, peer review, mentoring, a code of conduct and a disciplinary process backed by sanctions.

There is no legal requirement for a person who accepts an appointment as an arbitrator to have any qualification let alone one related to arbitration. Indeed, it would be a surprise to those who acted as arbitrators in construction disputes even 20 years ago to learn that a profession of arbitrators had developed and that arbitrators were expected to have a recognised professional qualification.

One of the greatest construction arbitrators, who acted regularly in the 1960s and 1970s, Leslie Alexander, had never had any training as an arbitrator. I doubt there was ever a complaint about his conduct, his courtesy was legendary and, as a distinguished architect, his knowledge and understanding of construction was unrivalled. Finally, his awards were always models of clarity and his decisions rarely challenged. If Leslie Alexander could flourish so successfully outside any professional structure, why can’t everyone else?

The answer is that arbitration has changed out of all recognition in recent years. The number, size and complexity of disputes referred has grown enormously, the consequences of error and unfairness have similarly grown and the public now requires faster, cheaper and more reliable decision making from their arbitrators. All these features of arbitration require skill, knowledge and experience, particularly from arbitrators who are invariably professionals but not legally qualified professionals. That is why the chartered institute decided to develop from an upmarket professional dining club into a chartered body providing for and delivering all the attributes of a modern profession.

The process of transformation took off when the institute acquired its first Charter in 1979 and its culmination will occur when, hopefully, the membership approves the supplemental charter at the end of October. This supplemental charter provides, in particular, for a disciplinary process backing a code of conduct enforceable by suspension and revocation of membership.

Disciplinary action will rarely be used and even more rarely will it lead to sanctions but such a system is a necessary outward and visible sign that those holding themselves out as practising members of a profession are subject to high standards and quality controls. A royal charter provides a professional body with a hallmark. It is a guarantee that it is capable of setting and maintaining high professional standards.

The chartered institute’s code of conduct is fairly new. It is, like most such codes, couched in generalities, but these provide essential benchmarks for the conduct of an arbitrator from first appointment to the completion and publication of the final award. In particular, the arbitrator’s duties to act fairly, impartially and without bias are stressed.

The law in recent years relating to actual or perceived bias by any judge, arbitrator or adjudicator has developed enormously and the existence of this code, and its enforceability, provides reassurance to the public that any chartered arbitrator has taken all reasonable steps to ensure that he or she has no prior relationship with either party that might jeopardise a fair and unblemished arbitration.

I described the chartered institute as being a professional body that trains, qualifies and disciplines the members of the profession of arbitrators. To be a fellow does not mean that person is engaging full time as an arbitrator. Indeed, most fellows regard life as an arbitrator as a diverting, albeit well-qualified, adjunct to their other professional or commercial activities.

No job for an amateur

A profession is, traditionally, a calling or activity requiring skill, expertise, training and a structure that ensures that high professional standards are maintained. Arbitration now requires arbitrators who can be relied on to exhibit all these attributes, particularly as they are not working as full time arbitrators but, like American football players, are called off the touchline for occasional intense bursts of highly skilled role play, in this case the role being that of dispute resolution.

The result of the growing development of an arbitrators’ professional structure is that anyone involved in an arbitration referred to an arbitrator who is a fellow of the chartered institute can be confident that the case is in the capable hands of an independent and well-qualified dispute resolver.

How does this structure compare with the standing and expertise of adjudicators?

During a break for tea on the third afternoon, the arbitrator asked the two advocates confidentially which method of decision-making their clients would prefer: 'A 50/50 split or a coin toss?'

There are now more than 2000 construction adjudications a year. The process is compulsory and the adjudicator’s decision is binding and enforceable by the court’s machinery of sheriffs, attachment and winding up if it is not honoured.

Adjudicators require judgment and integrity and well-developed people, communication and case management skills. They also have to work under considerable time pressures with limited resources. Yet no training or qualification is required of a person appointed as an adjudicator by one of the growing number of self-selected nominating bodies. The adjudication Society acts as an umbrella for nominating bodies and adjudicators, and some, but not all, nominating bodies have a short form of training and examination.

What is needed is the development of a widely recognised qualification issued by one or more chartered bodies relating to adjudication. The Chartered Institute of Arbitrators could slowly transform itself again into a chartered institute that confers fellowship status on adjudicators as well as on arbitrators.

If that happened, the adjudication structures imposed by the Construction Act could be amended to make it a requirement that any nominating body could only nominate someone who has acquired a recognised accreditation conferred by a professional body, which need not be its own accreditation.

That accreditation would need to be supported by rules of conduct, continuous training and peer review and a disciplinary process available as a backstop in the rare case where unacceptable conduct had occurred. All this is desirable if public confidence in a system of compulsory dispute resolution is to be maintained.

You may be beginning to think that it is all very well for His Honour to pontificate about professional standards, training and discipline that should govern the lives of construction dispute resolvers, but what about the judges? The answer is that the judiciary is now subject to a similar structure covering training and continuous professional development that the fellows of the chartered institute are governed by.

Before appointment, a judge must have sat as a part-time judge, that is as a recorder, for a number of years and proved themself in that role. All recorders are given detailed training prior to appointment. While a judge, there are residential refresher courses run by the Judicial Studies Board with particular emphasis on the area of work that that judge is involved with.

Regular bulletins and online information updates are sent to every judge to keep them abreast of new developments. A system of peer review is slowly being introduced. Currently, magistrates and many full-time tribunal members are subject to annual appraisal by colleagues on a reciprocal basis and the system is likely to develop further.

Finally, once the new constitutional settlement currently being introduced, that will cover judicial appointment, terms of appointment, complaints and discipline, is working, this country will have a transparent and fully developed judicial training and review structure that will rival any comparable structure around the world and which will ensure that judges are, and remain after appointment, of the highest calibre.

Overall, therefore, construction dispute resolution is in good hands but improvements are needed, particularly in the adjudication field. Nobody nowadays, whatever form of dispute resolution they choose for their construction dispute, need experience the type of arbitration I was subjected to in my first year in practice in 1971.

For three long days the parties and their representatives sat with the arbitrator in a site hut to go through a dispute with more than 1000 items of claim. The arbitrator, a construction professional, remained as silent as the grave throughout and took no notes.

During a break for tea on the third afternoon, he asked the two advocates confidentially which method of decision-making our clients would prefer: “A 50/50 split or a coin toss?” “Neither,” we replied and the clients then agreed to compromise within the hour.

His Honour Judge Thornton is a judge of the Technology and Construction Court