Adjudication, introduced last year as part of the 1996 Construction Act, was intended to be a quick, cheap way to reach an interim settlement of disputes. The industry, however, was sceptical – what were the chances of actually getting an award enforced? When the court upheld Mouzer's decision in February, Morrison had to hand over £300 000. This caused a dramatic change of attitude. The RICS nominated just six adjudicators in January; by July, that figure had risen to 43.
Those leaping on the adjudication bandwagon will find that Mouzer has been on board for a while. He undertook his first adjudication training in 1996 while working as chief QS for a building and civil engineering contractor. "I did it so that I was better prepared as a contractor when adjudication legislation did come through," he says.
Already a qualified arbitrator, he qualified as an adjudicator in the same year. He is now on adjudicator lists held by the RIBA, the RICS, the Highways Agency, and the Construction Industry Council, and is on the Chartered Institute of Arbitrators' panel of construction industry adjudicators.
Since his first case in September 1998, Mouzer has refereed 15 contractual dust-ups worth from £8000 to £500 000. Half have been brought by subcontractors against main contractors; the rest split between main contractors tackling subcontractors and clients, and clients taking on main contractors.
Industry veterans might think that those deciding construction disputes need the judgement of Solomon and the hide of a rhinoceros, but Mouzer says that, in his experience, the decision becomes obvious as long as you research the case thoroughly.
"Adjudication is hands-on," he says. "It's up to you to get to the facts. Written submissions are a starting point but where you go from there depends on the matter."
This often involves getting the warring parties to agree the facts face to face, which Mouzer says can be the hardest part of the job: "Most have been relatively calm, but there was one where the contractor was getting very agitated. It was a difficult meeting to control."
In construction, such meetings are often unavoidable. In one case, the dispute was over 5000 items of work that were not included in the contract. "There is no way I could deal with them without the co-operation of the parties."
If we regularly get decisions that leave something to be desired, people will lose faith in adjudication
Eric Mouzer
Once he has grasped the facts, Mouzer has what he sees as the onerous task of deliberating. "You are sitting in judgement here and I try desperately to get it right.
"In my experience, 90% of adjudications find in favour of the referring party, but not for the reason most assume. People say the party defending the claim is usually on the back foot and hence at a disadvantage. That's not what I've seen. I think it is because if people are actually going to go to arbitration they feel they've got a genuine entitlement."
Mouzer's conscientious approach does not stop people questioning his decisions, however. After one case, a consultant working for the losing subcontractor wrote to him: "I thought your fees were very reasonable, which is more than I can say for your decision.
"I think it was tongue in cheek," says Mouzer.
As a referee of a game that was completely new to the industry, Mouzer admits that he had difficulties early on with parties that did not understand the rules. In his first two cases, he struggled to get the responding party to join the adjudication process. In one, the respondent did not participate at all and then complained after the decision.
Losing parties also began exacting retribution on the victors. Subcontractors that won adjudications against main contractors were victimised in subsequent dealings on site. And he encountered one petulant client that lost a case brought by a contractor. "The client, who had worked with that contractor for 20 years, honoured the decision but then said the contractor would never work for him again."
Mouzer says such attitudes are disappearing, but the understanding of adjudication is far from universal. "I think there is still a phenomenal amount of ignorance among contractors. They think that because it is not in the contract it has no relevance."
