The first is during an adjudication or arbitration. Heavy-handed objections to jurisdiction, over-the-top legal submissions or threats not to take part arise. The second is a complaint about the adjudicator to his or her professional institute.
This sort of bullying could undermine the independence of some adjudicators, swaying them to see things the bully's way. Or it could drive some adjudicators to do the bully down. Who knows? Either way, it is unacceptable. Then there are those who report the adjudicator to their institute asking for "stern action". Some institutes then discipline their member through a humiliating process that can play on the mind of other adjudicators. It is possible that adjudicators and arbitrators become scared stiff and unwittingly tinker with decisions. The guidance note gives help on this. Best of all, it says to adjudicators: "Don't lose your temper."
A party can’t come to adjudication and create the agenda for decisions during the adjudication. The agenda must be created beforehand
More important in my view is this advice: "Consider whether the documentation properly relates to the dispute being adjudicated or to another issue (which may or may not be a dispute between the parties). The introduction of matters that have not been canvassed by the referring party at or before the referral may point to there not yet being a dispute within your jurisdiction". This is important. Look, a party can't come to adjudication and create the agenda for decisions during the adjudication. The agenda must be created beforehand. That's what is meant when we talk of matters being canvassed. So, long before the adjudicator wallah is called up, there is a period of "position taking". If I am dissatisfied with your performance under the contract, I will write to you expressing my opinion. I call this a "position statement". If you have got your brains together, you will reply in detail with your position. Call that a "position statement" too. You can bet your life you will include new points, arguments and so on. Bet your life again that I will reply. This canvassing of views very often leads, by the way, to settlement. If not, there comes a point when it's time to stop, time to call for the adjudicator. The "referral" of all the canvassed views is the bagging-up of the dispute. You can't have an adjudication unless a dispute has materialised and it is only the material dispute that is bagged-up. So on day one of 28 the adjudicator has got the arguing "done and dusted". The 28 days belongs to the adjudicator. Have you got the idea? And do you see how these "position statements" before adjudication stop the ambush by either side? And do you see the basic fairness in all of this? None of this "positioning" need be formal; it can all be done by letter writing between the parties. But do cover all the points and do get your evidence together and do point to where in the contract you say you have a right to this or that. And if all this approach is a surprise to you, let me tell you that a string of High Court cases have given huge nudges that this is the way to do it.
The guidance is silent on whether the adjudicator should search for himself to see if he has got a real live dispute … in other words, jurisdiction. In my view, he should not. It is only his job to inquire if one party raises the point and not otherwise.