REUTERS | Athar Hussain

Diversity of tribunals in construction disputes

This year, following the celebration of 100 years of women’s suffrage, and the first occasion where a female majority heard a Supreme Court case, we have seen a greater focus on diversity.

The legal sector has recognised that we should encourage and attract a workforce that exhibits a range of differences which include gender, sexual orientation, disability, culture and ethnicity. It is strongly argued that this is reflective of society and serves to achieve higher standards, fairness and efficiency.

The Construction Industry Council and organisations such as the National Association of Women in Construction have frequently reported that diversity is central to innovation in construction and the future of the sector. It is also well documented that a diverse workforce is of great benefit to growth, new ideas and also profit generation.

Aside from some obvious progress (such as the number of female judges in the Technology and Construction Court in London, three female to four male judges), the lack of diversity in the construction industry is often lamented. While the diversity of senior judges is showing promise, Baroness Hale (the President of the Supreme Court) has been very clear that women are seriously under-represented in the judiciary. What that means is that if parties to construction disputes issue proceedings in courts other than the TCC in London, the chances are a senior man, usually a former barrister, will hear the case and make all directions, orders and give judgment. It is also relevant that judges serve for long periods of time and have significant workloads so it is commonplace to find the same judges dealing with a series of high profile disputes that have a long lasting impact on the industry.

This is not just an issue for litigation as a form of dispute resolution, it is also an issue for all forms of dispute resolution that we use. In addition to parties taking disputes to court, construction disputes are addressed by mediators, adjudicators and arbitrators, and the same issues remain as this group is not diverse either. It could be argued that within the confines of construction mediation, adjudication and arbitration, the situation is actually much worse than the court system with nowhere near parity of the genders, or what could be described as ethnic diversity. It is actually quite difficult to even name a list of female adjudicators, and the chances of one of them being appointed is very slim indeed.

Therefore, if you apply for the appointment of an adjudicator or arbitrator, the person appointed will usually be a senior man with at least twenty years’ experience selected from a small group of approved panel members. However, what should be noted is that, while there is lack of gender and ethnic diversity among adjudicators and arbitrators, there is evidently a range of backgrounds and technical skills that are of direct benefit to the parties involved.

Baroness Hale has said that the lack of diversity is because women are being driven out of the legal profession and private sector as it is not possible to address the demands of a career with caring and childcare responsibilities. Another cause is that, when parties have the ability to select tribunals, they repeatedly pick the same people, usually for sound legitimate reasons such as expertise and consistency, which narrows the spectrum even further.

One explanation for the lack of diversity is that the pool from which we select our dispute resolvers is full of similar people and, once they acquire a good reputation, parties want to stick with known quantities. It also seems evident that another reason for this lack of diversity is because dispute resolvers are expected to have significant experience in their field and, as a consequence, are selected from senior positions within the sector. If you then look at the senior board members and partners in construction companies, quantity surveying practices, law firms, and so on, you will see that it is predominantly a group of successful men. However, this group is not necessarily representative of the parties it serves.

It is easy to see why we repeatedly appoint the same people, namely because they do a good job and are trusted. However, if we do not challenge a lack of diversity, the risk is that we will have a small group of people making all the important decisions that directly affect the interpretation of legislation, construction contracts and the direction of cash flow in the industry. There is also a real risk that, with so many senior adjudicators and arbitrators reaching retirement age in the next five to ten years, there will be relatively few people with anywhere near their level of experience to replace them.

If we ignore the potential impact of Brexit for a moment, construction is actually an international and vibrant industry with people from different backgrounds working together. There are so many focus groups and not for profit organisations that are becoming mainstream in construction that show an exciting demographic of mixed age groups and people with a variety of technical and academic skills. It is this group that are working on site, building, designing, administrating contracts, surveying and engineering, and it is their understanding of what is happening that is central to the relationship between parties to the contract, the progress and quality of the works, what disputes arise and what forum is chosen for their resolution.

In response to this, some may say that, just because construction project teams are becoming more and more diverse, doesn’t mean the dispute resolvers need to be. If the experienced professionals that sit on tribunals or act as mediators or adjudicators are technically competent and fair, does it matter if the majority are all men from the same ethnic group? Provided that someone with a diverse background and the relevant qualifications has the opportunity to move through the ranks to become a judge or panel adjudicator or arbitrator, why should there be any complaint if they are few and far between? Should we not just sit back and wait for diversity to increase by itself? The short answer to this is, no.

It may be interpreted as a criticism of the senior practitioners out there to say we need more diversity, but it is not intended to be. In the absence of diversity, their experience can be impaired, they are often over-worked and the chasm between them and the project teams on site is just growing bigger. This is not to say we should just import anyone to resolve disputes in the interests of diversity. We have to accept the confines of relevant technical and legal competence, but we should work harder to develop junior professionals of all disciplines so that in the future they can turn what is a narrow pool into a more representative body of people.

The driver for this not just because it is the right thing to do or because people from diverse backgrounds “deserve it”, but because it actually reinforces our faith in the justice system. Diversity also encourages ideas and increases the chances of a more thorough understanding of disputes. As such, it is important to foster different ways of decision making that can only be improved by a more varied demographic of those charged with resolving disputes.

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