'Adjudibration' promises speedy resolution to contract disputes
'Do you want the good news or the bad news?' my clerk asked. The bad news was that some big job he had put me up for had gone elsewhere.
He went on to say that I was required to draft a response in an adjudication; that the papers were extensive; the QC who had been involved was busy in court, and I was needed to do an awful lot of work in a very short time. 'So what's the good news then?' I asked rather ungratefully.
This was the sharp end of adjudication: not ploughing through the increasing body of court decisions about whether there was a contract and, if so, whether the terms relied upon were in writing, with a view to upholding, or undoing, an adjudicator's decision in court. This was getting the raw evidence together for the adjudicator, the documents, the witness statements and the experts' reports and preparing a succinct and pithy response to a sizeable claim. As time ticked away, the working day grew longer and the email positively hummed with drafts of this and comments on that. One could not help but think that there must be an easier way to obtain justice - even quick, interim justice.
It turns out that there just may be. The new buzzword in the world of construction dispute resolution, is 'adjudibration'. This proposed hybrid of adjudication and arbitration is intended to take the best out of both processes and give you something more than the quick fix of adjudication but less than the full panoply of arbitration.
So what are the key features of this process?
The speed at which adjudicators are appointed is seen as a big selling point. Adjudicator Nominating Bodies (ANBs) have geared themselves up to make appointments within seven days, while it can still take some weeks for an arbitrator to be appointed. Equally, by identifying the ANB in the contract, the parties enjoy more control over the discipline and background of their adjudicator.
Adjudication is perceived as an informal and flexible process whereas arbitration is considered to be more formal and cumbersome. This perception does arbitration a great disservice, since the 1996 Arbitration Act provides both the parties, and the arbitrator, with all manner of options to facilitate speedy and cost-efficient dispute resolution. The complaint seems to be, however, that many arbitrators just don't use them, whereas adjudicators have little choice but to adapt procedures to fit the tight timetable. Also there is no right of appeal from adjudication. This is marvellous, of course, if the decision goes in your favour. It seems, however, that the industry is prepared to accept even bad decisions on the basis that at least the parties know where they are and they can live with it.
The real trouble with adjudication seems to be the 28-day cut-off point for a decision. Increasingly, parties are realising that complying with the timetable can really take its toll, not just in legal bills but also in terms of client resources. The requirement overlooks the fact that people have other, perhaps more pressing or profitable, things to do with their time.
They are also realising that with the best will in the world, the quality of the result is inevitably jeopardised by hastily assembled material. A month is obviously not enough for big, complex disputes, although the timetable can be extended by a fortnight on the say so of the referring party, or replaced with a whole new timetable with the agreement of both parties. But this is where 'adjudibration' comes in.
The idea is to retain a time limit, because it concentrates the mind wonderfully, but to extend it to something more practical, such as 100 days.
This would give 'adjudibrators'the opportunity to devise a procedure which could combine the use of their inquisitorial powers with a documentsonly decision on parts of the dispute but, where necessary, to hear oral evidence.
Another change that the lawyers, at least, are keen to make is to enable the successful party to recover their costs. They know that when they are asked to do an awful lot of work in a very short time it can be very expensive.