Earlier this year, I wrote about how I thought it was time 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.
I referred to the difficulties for individuals in gaining the experience they need, and drew an analogy with the chicken and egg:
“… 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. “
If you are not on a panel, how to do you get experience? If you are inexperienced, how do you get nominated? In those circumstances, what chance do you have of producing a decision (let alone three) that would allow you to be considered for inclusion?
Why is mentoring necessary?
I think a mentoring or shadowing scheme is necessary for a number of reasons.
Firstly, the adjudication process is now far more complex than was originally envisaged when statutory adjudication became a reality 20 years ago.
Back then, training courses for adjudication typically 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. Adjudicator training was pitched accordingly.
Secondly, when I started out, there was a clear divide between the training for adjudicators and arbitrators who planned to specialise in construction disputes. There still is, and good training exists for arbitrators, but not so much for adjudicators. We currently address the academic side of adjudicator training but its hands-on experience that is the issue.
What am I doing about this?
I have amended my terms of appointment so that they provide that I may involve a pupil to shadow me during the adjudication, subject to the parties being notified and being given the opportunity to object. There is obviously no charge or cost to the parties.
How does it work in practice?
Following service of the referral, I will ask the pupil to confirm to me whether they have any conflict with the parties. I also ask them to provide an undertaking of confidentiality.
Providing they have no conflict, I will forward a copy of the pupil’s CV to the parties asking whether they have any objection, confirming that the pupil will not be involved in any procedural or substantive matters.
Subject to any objection, I then forward the adjudication notice and referral to the pupil as if they were being approached to act directly by the parties. I then ask the pupil to send me their directions. The pupil then effectively follows me, but typically up to one week in arrears, addressing jurisdictional points and anything else that comes along, but only after I have addressed the issue with the parties.
If there is a meeting or hearing with the parties then the pupil will need to be following more closely in arrears, and they will attend the meeting. I will also give them access to submissions and then, finally, they will draft a decision (again after me). Once they have completed the decision, I will provide them with a copy of my decision in exchange for theirs and we will discuss matters arising. There will invariably be exchanges and discussions regarding procedural decisions too.
Is it working?
The feedback from pupils has been good. They welcome the opportunity to see things from the adjudicator’s perspective and several have said that they think it should be compulsory for aspiring adjudicators.
I also find it interesting to see how the pupils deal with things and reach a decision. It is also good for me, because I have to have to explain why I have adopted a particular approach or dealt with an issue in the way I did.
I may be doing my bit but there is far more that the ANBs could do. Adjudicator mentoring has featured on my wish lists for many years. Perhaps 2019 will be the year that we see more positive action.