REUTERS | Jumana El Heloueh

Are people arbitrating more?

Jonathan’s last two posts have looked at a few aspects of arbitration, not least the fact that many of the skills we learn as adjudicators are highly useful when it comes to resolving disputes in other ways, especially as an arbitrator.

As someone primarily involved in resolving disputes via adjudication, I’m all too familiar with the skills that Jonathan talked about. Like many others, I’d like to think they are also part of my repertoire and why people appoint me to resolve their disputes.

Unlike some, I learnt my dispute-resolving trade as an adjudicator, rather than being an arbitrator who converted over to the new kid on the block in the late 1990’s. I didn’t have entrenched ways of doing things; I started with this 28-day procedure. Therefore, I’m used to hitting the ground running and so, if anything, I’ve been through the process in reverse. We may have started with a statutory 28 days (or 42 days if the referring party wanted it), but have repeatedly watched that statutory time frame get extended over and over.

Looking back, the period was extended so often that the Society of Construction Arbitrator’s thought there was room for a short-cut arbitration process. I’m not sure how often the 100-day procedure is used, but it’s there if people want it.

…and I’m finding that people do want to arbitrate. I’ve noticed an increase in the number of disputes that seem to be graduating from adjudication to arbitration and, to some extent, litigation. It is hard to know whether this is simply a sign of the current economic situation many firms find themselves in, or whether it represents something more, a trend away from the adjudicator’s decision being the final word on a dispute, towards it being just an interim answer (just like Parliament intended).

Interestingly, I think it is the very nature of the interim-binding decision that is one of the strengths of adjudication. On that small number of cases where the parties get a decision that they cannot live with, they have the option of arbitrating “post adjudication”. On the whole, this is a much quicker process, since they have already honed the issues in dispute, have rehearsed the arguments and gathered the evidence. They don’t quite hit the ground running, but they definitely have a head start!

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