How often do you wonder about the skills an adjudicator has and think “I bet those skills are really useful in other spheres of dispute resolving”?
I imagine most people don’t give much thought to my question and I can see why that may be. However, I don’t think it has always been this way. Once upon a time, when statutory adjudication was the new kid on the block, I bet when most people were confronted with their first adjudication dispute, or were wondering whether to name someone as the adjudicator in a contract, they looked at a list of names they were familiar with from their experiences of arbitration or mediation, and wondered whether those same people would be any good at adjudication. In those early days, the adjudicator-nominating bodies (ANBs) had drawn up lists of names, but a large number of those names were unfamiliar to most people.
Nowadays, with so many “old-hands” around, things are a bit easier for folks, especially as the ANB lists are so well established and people undoubtedly have their preferred individuals. Parties are used to naming an adjudicator in their contract or agreeing someone to act as the adjudicator once the notice of adjudication has been served.
What are the skills of an adjudicator?
In his book, Coulson on Construction Adjudication (Oxford University Press, second edition, 2011, paragraph 18.02), Coulson J identifies three characteristics, which he describes as essential for an adjudicator. (He doesn’t address the question of whether these skills are different to the skills that make a good arbitrator.) These are the ability to:
- Manage time (the adjudicator’s own time and that of the parties).
- Grasp the essential issues quickly and focus on those issues.
- Treat the parties fairly and courteously, and to take on board their submissions.
It is hard to disagree with the characteristics Coulson J has identified. The adjudication process is generally a quick one, and so the essentials must focus on that aspect. I note Coulson J cautions against adjudicators getting bogged down in technical details, especially when the issues fall within that adjudicator’s area of specialism.
and are these skills transferrable?
I would argue that an adjudicator’s skills are equally applicable to resolving disputes via arbitration, expert determination or early neutral evaluation. The procedure and timetable may differ, but the parties are still looking to you to resolve the dispute, which will involve identifying the issues. While expert determination may involve the dispute resolver using his expertise to decide the issue without sharing it with the parties, in my view the analytical skills required to determine the dispute will not be dissimilar.