I started mumbling agreement with all this psychobabble. This stuff was so right, so true. Adjudicators are frequently mugged by at least one of the parties. And if you think I am about to say they deserve it, I am not. The job is already hellishly difficult, but it is being made almost unbearable by the drama triangle.
Here's how it works. A building industry dispute is ordinarily a two-party affair. The subbie thinks he is the victim of the tyrannical, tightfisted main contractor; the main contractor, of course, sees things differently. They thinks they are the victim of the aggressive, cheating, conniving subbie. But in this brave new world of UK contracting we have invented the rescuer, the adjudicator, the dispute solver – Superman. Thus appears the triangle of claimant, respondent and Superman.
Let's think of this another way. When my daughter was doing her A-levels she felt persecuted by the workload. She was, she said, the victim. Silly old me offered lots of ideas on how to cope. I was the rescuer, the problem solver. Silly old me got my head bitten off.
The victim refused help, dismissing my suggestions – they "won't work" and I was "wasting precious time". The rescuer became a victim. Then I got niggly and chastised this ungrateful offspring. I now became the persecutor. This is happening with adjudicators and arbitrators too.
My daughter felt persecuted by her A-level workload. I offered ideas on how to cope – and got my head bitten off. The rescuer became a victim
When adjudication begins, the claiming party sees the referee as the problem solver, the rescuer; the ref is welcome. Frequently, though, the responding party sees the adjudicator as a bloody nuisance and an interfering busybody. The respondent sees themselves as the victim. Once the adjudicator begins to direct the respondent to do things, that person will see this as persecution. Things get heated. Worse is to come. If the adjudicator thinks the respondent has a good point, about procedure or anything else, the claiming party becomes irritated – not just with their opponent but with the adjudicator. And remember, all this is happening at breakneck speed. Remember, too, that mistakes are inevitable. The cock-up is just around the corner.
Then we have to consider the five personality modes. The claimant, the respondent and the adjudicator will each be a personality type. They could be competing, avoiding, collaborating, accommodating or compromising. Competing people are assertive and uncooperative; they just want to win. Avoiding people are unassertive and uncooperative; they just do nowt. Collaborating people are assertive and co-operative; they get upset with competing people. Accommodating people are unassertive and co-operative; they see the everyone's point of view. Compromising people are neither assertive nor co-operative; they want to satisfy everyone by inviting the disputants to sort out the damn problem for themselves.
I realised during this talk that adjudication in particular requires the development of a special skill. The adjudicator has to train to be instantly sensitive to avoid being in the wrong mode; they have to be able to switch modes, or rather not overuse a mode. I say "instantly" because time is of the essence. Arbitrators have to have this skill too, but they have time on their side. The referee has to be trained to cope with at least one party, if not both, who will become vexatious, spiteful and eventually seek revenge on them.
The RICS Dispute Resolution Faculty scored a real hit with its roadshow, particularly with this paper.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on email@example.com.