When I sat down to write this week’s blog, we hadn’t had a published judgment on an adjudication case for a few weeks. That may have changed with Coulson J’s last TCC judgment, which came out today, but I’m leaving that one for Jonathan next week. Instead, you get a short piece on something I feel quite strongly about – adjudicator mentoring.
Included in my wish list for 2018 was the introduction of a mentoring or pupillage scheme for adjudication. The rationale for this was to reflect the way that adjudication, as a process, has developed since its inception and to fulfil a perceived need for providing practical hands-on experience to newly qualifying adjudicators.
In the main, in the early days of statutory adjudication, training courses for adjudication typically lasted between one and three days. Those courses envisaged a rough and ready process where an independent third party neutral would roll up their sleeves and proceed to reach an interim decision concerning an interim payment-related dispute. In essence, it was envisaged that the adjudicator would act as a replacement “certifier” to the engineer, architect, contract administrator or quantity surveyor.
At the time, there was a rush for and need to form lists of adjudicators. As a result, the entry level and barriers to individuals to be included on these lists were lower than it was for arbitrators specialising in construction disputes.
Chicken and egg
When I was undertaking my training as an arbitrator, to be admitted to a list of arbitrators it was typically a requirement that you had sat as an arbitrator and produced a number of awards. I recall thinking at the time how I would be able to satisfy the requirement to have sat and/or produced awards without being on a panel. The concept of the chicken and egg was foremost in my thoughts at the time.
To address this issue, there was a formal pupillage system in place where budding arbitrators could shadow experienced arbitrators, sitting in on hearings and preparing procedural directions and drafting awards based on actual hearing that they had attended, as well as matters that had been conducted on a documents-only basis. Clearly, the consent of the parties was required, as was an undertaking from the pupil regarding the preservation of confidentiality. However, in my experience this was seldom a problem. Indeed, it was not uncommon for arbitrators to be flanked by more than one pupil, such that I recall one senior advocate quipping that it was like appearing in the House of Lords when he appeared in front of a certain well known arbitrator!
Still a chicken and an egg
Fast forward to 2018 and adjudication has now developed into a well-established and complex procedure, supported and endorsed by a specialist construction court. Training has developed to suit, and the skills and training that were considered appropriate for arbitrators are now considered appropriate for adjudicators. However, while some of the individuals who were adjudicating in the early days are no longer doing so now, a significant number are. The effect of this is that gaining admission onto the adjudicator panels or getting your first appointment is even more difficult than it was 20 years ago. This is reflected in the fact that some panels require applicants to have sat as an adjudicator and produced, say, three decisions before they will be considered for inclusion. Sound familiar?
Cracking the egg
I think that the time is now right for some form of mentoring or shadowing scheme to be introduced to enable budding adjudicators to gain exposure to the practical and real-life issues that adjudicators experience and to be able to discuss those issues as part of their development. This could also include producing a decision once the adjudication had concluded.
Although I can understand that some parties would require the comfort that the pupil was not usurping the role of the appointed adjudicator, I do not consider this would cause any difficulties for an experienced practitioner. While it may fall on the experienced adjudicators to take the lead (for example, by including a term in their appointment conditions to the effect that they may have a pupil), my instinct tells me that the drive ought to come from the professional and nominating bodies who, arguably, will have the necessary “persuasive” power to get the parties and experienced adjudicators on board.