MAN AND PIG
Adjudication has changed the face of dispute resolution in the construction industry forever, writes Kim Franklin. Or has it?
It is now nearly 10 years since the 28-day process was first launched to rapturous applause from an enthusiastic industry.
Goodbye to antiquated, protracted litigation with a judge who doesn't know his JCT from his elbow. Farewell to ponderous, expensive arbitration with an arbitrator who knows all there is to know about concrete, but wouldn't recognise a breach of contract if it leapt up and bit him. Hello to cheap, speedy, satisfactory justice from the multi-purpose, user-friendly adjudicator. Or so they thought.
A decade down the line and it is clear that adjudications now take longer: very few are dispatched in the statutory 28 days. The procedure has become more elaborate, with most adjudicators holding some form of meeting or hearing.
Adjudication is not limited to low-value, cash-ow claims.
The truncated process is used for multi-million-pound finalaccount disputes and complex professional-negligence claims.
It is expensive. The across-theboard increase in adjudicators' fees is nothing compared with the money thrown at the process by the parties. And you don't need a lawyer to tell you that employing someone to complete an awful lot of work in a very short time does not come cheap. But you usually do need a lawyer.
The increased complexity of adjudication - the protracted and elaborate procedures adopted for adjudications and the sheer scale of the disputes to be resolved - have put considerable strains on adjudicators. Not so long ago concerns were expressed at the dwindling pool of suitably qualified adjudicators.
Construction arbitrators will have several years of formal training in contract law, evidence and decision making, coupled with a lifetime's experience behind them. While the training requirements for latter-day adjudicators vary, they seldom involve more than a short accreditation course.
This potential gap in the skills market is now being filled by various new adjudicatortraining courses. Last year, the College of Estate Management introduced its one-year distance-learning adjudication course in conjunction with its existing arbitration diploma.
The Centre of Construction Law at King's College, London has now launched a new parttime programme for those with existing relevant experience, starting in September 2007.
So lengthy, complex and expensive disputes are to be resolved by fully-trained, experienced adjudicators, who will be able to manage an extended evidential procedure before producing a reasoned and enforceable decision.
If called upon to compare traditional arbitration with modern-day adjudication, we could be forgiven for calling to mind the conclusion of George Orwell's Animal Farm. When the hard-pressed labouring animals peered in through the farmhouse window at the pigs, who were to change everything, entertaining the farmers, who were to be done away with for good, they 'looked from pig to man, and from man to pig; but already it was impossible to say which was which'.
Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London. Visit www.crownofficechambers. com