There is an interesting article by Cliff Wakefield in the latest Construction Law Journal, “Are the users of adjudication getting a raw deal?”.
Cliff discusses whether there is a decline in adjudication referrals at the present time, notwithstanding the recession (when you would expect to see more not less referrals), because the process has turned into such an expensive one for the parties, especially in small and medium-sized disputes.
He puts forward a number of arguments for why this may be, suggesting that it has mainly gone wrong for users of adjudication because so many people (ANBs, lawyers and adjudicators) are milking the system and are no longer putting the disputing parties first. I will leave others to read Cliff’s article and form their own views on his arguments and conclusions.
How many referrals at one time is enough?
One aspect of the article that interested me was Cliff’s views on the number of referrals an adjudicator should have on the go at any one time.
Cliff argues that those adjudicators who “wish to be nothing more than full-time dispute resolvers [take] on far too many adjudications at any one time”. He argues that this leads to some parties’ adjudications receiving less time and attention than they deserve, resulting in “inadequate, ambiguous or simply wrong decisions”. He bemoans the fact that the ANBs do not ask adjudicators how much other work they are dealing with and suggests that no more than three adjudications should be dealt with by an adjudicator at the same time. He even goes further than this, and suggests that parties should seek to amend an adjudicator’s appointment letter to confirm the adjudicator will be involved in no more than two other adjudications at the same time as their dispute.
I can understand where Cliff is coming from with this argument, although I don’t agree with him, and I don’t think that it is practical to try and limit someone’s adjudication workload.
While there may be some merit in an argument that some adjudicators are too busy, that applies equally regardless of whether their work comes from adjudication or from some other source. For example, what about adjudicators who also act as arbitrators or are busy in private practice as well as resolving disputes as part of their daily workload? Even if one said yes to limiting the number of adjudications to three, it would simply be irrelevant if they were busy on other things (even full-time dispute resolvers).
What about the advisors?
It also doesn’t address the issue of parties’ advisors letting them down in the adjudication, being ill-prepared for the process or unable (or unwilling) to comply with the strict timetable. Perhaps that is another story, for another day…
Adjudication is unpredictable
Cliff’s suggestion also fails to reflect the unpredictable nature of adjudication. All disputes are unpredictable, regardless of the structure they are being dealt with in. One could argue that adjudication’s 28-day process makes it more predictable than a dispute being resolved through the courts or in arbitration, but I’m not sure.
For example, when the dispute is referred to you and you are considering accepting the appointment, you do not know how much work will be involved. The notice may be in the briefest terms and you have no real feel for the scope of work involved until you see the referral. By then you are already appointed. It is too late.
Other factors may also have a part to play. For example, the case may settle or the parties may agree an extended timetable, way beyond the 28 or 42-day procedure envisaged by statute. Either way, suddenly the adjudicator may be left with a quiet period, with some of his workload pushed off into the distance.
An extended timetable may also cause other difficulties, as it may impact on the timetable of another adjudication that the adjudicator is involved with. Again, that isn’t something the parties think about when they present it as a fait accompli to the adjudicator.
Finally, what about those contracts that name the adjudicator, or where the parties want the same adjudicator as they had last time? If the adjudicator already has several adjudications on, what is he to do? I’m not sure it is in the interests of justice for the adjudicator to send the parties away in those situations.
Fettering choice is not the answer
I would suggest that fettering an adjudicator’s ability to determine his own workload would bring more problems than it may solve.