REUTERS | Fred Thornhill

Is it time for greater gender parity among adjudicators?

It struck me the other day that, of the vast number of adjudications I have been involved in over the last 12 years, only once has a female adjudicator been appointed. So I asked my colleagues whether my experience is typical. It is.

So we started calling round the nominating bodies to find out just how many female adjudicators they have on their books. Some have more women on their lists than others:

  • ICE: 0 women out 42 on their list – 0%
  • TeCSA: 4 women out of 68 on their list – 6%
  • CIArb: 5 women out of 83 on their list – 6%.
  • RIBA: 5 women out of 65 on their list – 8%
  • TECBAR: 26 women out of 140 on their list – 19%
  • RICS did not wish to share this information.

Do these statistics reflect the construction industry as a whole?

I was quite surprised by these statistics. The issue of gender balance within the construction industry has been rising up the agenda over many years. Most of the industry’s professional bodies recognise the contribution women make and are striving hard for greater parity. There is also a big push within the arbitration community to increase the number of female arbitrators. My firm, along with 1270+ signatories from across the arbitration community, has signed the Equal Representation in Arbitration (ERA) Pledge to take real steps to improve the profile and representation of women in arbitration, with the aim of appointing women as arbitrators on an equal opportunity basis. What’s more, from 3 October 2016, two eminent female QCs, Finola O’Farrell QC and Nerys Jefford QC, will become High Court judges sitting in the TCC, making it the first court to achieve gender parity.

Therefore, it seems to me that this lack of representation and the lack of focus on gender parity within the body of adjudicators is at odds with the construction industry and other dispute resolution bodies. It would be an easy explanation to say that the low representation of women on the nominating bodies’ lists reflects the construction industry as a whole, but that is not true. On the professional side of the industry, the hard work is paying off. There are increasing numbers of women.

  • About 40% of graduates from architectural programmes are women and 20% of all registered architects are women.
  • While Women in Engineering report that only 9% of the engineering workforce are women, many of the large firms report much great parity: Aecom report that 27% of the workforce are women and 18.4% of their engineers; WSP report women make up more than 20% of their engineers; Bechtel report 25% of the workforce are women and 14% of their engineers; Arup report 32% of the workforce are women.
  • RICS reported in 2014 that 13% of chartered surveyors were women, with 28% of students and trainees being women.
  • Amongst lawyers, the parity is greatest. For 20 years, as many women as men have been qualifying as lawyers. I need only look across my own office to see that there are as many female as male construction lawyers.

I don’t think we should be too critical of the nominating bodies. While carrying out this research I have found no commentary on the diversity of adjudicators. This issue doesn’t seem to be on anyone’s agenda. I suspect that others, like me, just haven’t thought about it and have not realised the level of disparity.

I also think that the construction industry and dispute resolution community are keen to deal with gender issues, when they become aware of them. I am sure that there would be a good deal of support for developing a body of adjudicators who reflect the make-up of society and our industry.

So, what now?

Maybe we should take our lead from the arbitration community. As well as training up more women, the nominating bodies are making sure that women actually get appointed by being transparent about their lists and appointments.

In January the ICC announced that it would start to publish the names of arbitrators serving in ICC administered cases which were registered as of 1 January 2016 and where “Terms of Reference” have been established. LCIA is also publishing its data and CIArb very readily provided me with all sorts of information.

Perhaps we as a community should encourage adjudication nominating bodies to take a similar approach?  Transparency is an issue that is already on the dispute resolution agenda, in particular in avoiding allegations of bias. I hope it will also help to address the surprisingly low number of female adjudicators on nominating bodies’ lists.

Berwin Leighton Paisner LLP Catherine Gelder

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