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Adjudicator mentoring, a tale of a chicken and an egg

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.

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.

MCMS Ltd Matt Molloy

11 thoughts on “Adjudicator mentoring, a tale of a chicken and an egg

  1. Dear Matt,
    Having completed the RICS Diploma in Adjudication under your tutoring and having been met with the same barriers to becoming an Adjudicator Panel member I would dearly like the opportunity of becoming a “pupil” under your or Jonathan’s guidance.
    Do you have a formal application submission I could complete?

    Yours sincerely
    Ed Ranns

  2. Dear Matt

    Your thoughts on this issue are very much welcomed, and it is undoubtedly helpful that a prominent adjudicator holds such a view. I have raised it a number of times in the past with various people and institutions. I am unsure if you are aware, but the CIArb now has plans in place with regards to a mentoring scheme. When it is finally rolled out we shall see to what extent, if any, this assists in resolving the current ‘chicken and egg’ situation.

    Kind regards,

    Dean

  3. Dean,

    As I understand it the CIArb mentoring scheme is not a pupillage scheme, but a professional mentoring scheme linked to developing you as a professional rather than specifically as an ADR practitioner. The issue of budding adjudicators gaining experience, and therefore getting on to a list of adjudicators is still very much a real problem.

  4. Hi David

    One would still hope that the mentoring scheme would at least have the potential to open some doors of resistance (for instance, your mentor may be able to have his or her clients agree to you being named as Adjudicator in a few contracts, thus meaning that you at least may potentially have to act as Adjudicator and write a Decision).

    However, I hear what you are saying and you could well be absolutely right. If the CIArb scheme is purely about developing individuals as professionals then a trick is being missed in my opinion

  5. Matt, I agree with all you say. There is nothing to stop adjudicators [or the professional bodies] keeping a list if those who wish some adjudicator pupillage. I do this frequently with the parties agreement, and subject to conflict checks, and I have never experienced any resistance from the parties. The pupil reads the papers, attends any hearings and takes notes, and we have discussions about procedural issues, but not the context of the adjudication. Some even try drafting a Decision or parts of it.
    They all say they have found it very helpful and sometimes scary[!!] at what we adjudicators have to go through. So I think it is a great process, giving future adjudicators hands on experience.

  6. Dear Matt,

    Thank you. In practice, I wonder how and when ANBs actually say ‘yes’ to budding adjudicators to be included on a list, and how frequently? How is the production of three decisions interpreted, on the basis of qualification for inclusion? From my own training with the CIArb and RICS, I have two decisions (academic), but do wonder where the third decision might come from!
    It sounds like an excellent idea to ‘shadow’ a practising adjudicator and publish an independent, but anonymous, ‘decision’.
    Of course my understanding is that the parties in adjudication might cry foul if they believed the decision they received did not originate from the appointed adjudicator.

    1. Jeremy

      There is no chance of that happening. The Adjudicator just makes it clear from the outset that the Decision is his or hers alone and the pupil will take no part in that. In my experience parties and their representatives have no issue with a pupil being involved.

      Len

  7. Thank you to all that have commented, either here or to me directly. I’ve certainly picked up that this was likely to be a hot topic (or is that hot potato?), and that I was opening a can of worms by mentioning mentoring. It is definitely a work in progress and, I’m sure, not the end of the matter. Watch this space!

  8. It’s interesting as the adjudicators I have met say they are concerned that there are not enough people wanting to become adjudicators .I enjoyed the RICS course and I am looking for a way to act as an adjudicator too but it’s proving hard.

  9. Matt,
    Following our last discussion on this I’m please to read your article. I’d like to continue a discussion with you about this in the near future. I’ve had a number of conversations with lawyers and professional bodies to try and find ways to crack this egg and have suggested a mentoring/pupilage scheme to some who think it is a good idea. How and when can one be established that may be supported by professional institutions?
    Regard
    Neil Boothroyd.

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