The lonely arbitrator and the need for a level playing field
Construction lawyers provide themselves with many opportunities to gather together and discuss their trade. Hence bodies such as the construction courts' solicitors' and barristers' associations, TeCSA and TECBAR, and the Society of Construction Law continue to flourish. Construction arbitrators go to even greater lengths to provide themselves with each other's company.
This is, of course, wholly understandable because being an arbitrator can be a lonely job.
Arbitrations can take on something of a party atmosphere, with their respective teams working closely together for days or weeks on end. When making arrangements for the hearing, they usually book themselves spacious retiring rooms where coffee, designer water and lavish sandwich lunches are laid on. After every arbitral session they retire in animated huddles to discuss progress, over the chocolate biscuits, leaving the arbitrator to take a lonely lunch in the hearing room or wander the streets to find a venue where there is no risk of bumping into one of the witnesses. One arbitrator quipped that some representatives only use inclusive modes of address, such as 'let us look at this document together' to make the arbitrator feel that they are somehow involved in the process.
To avoid excluding the tribunal from all the fun, some representatives make a special effort to engage the arbitrator in small-talk over the coffee break. The rules are that all representatives must be present at the time and may not discuss anything to do with the case, the subject matter of the dispute or the law. As construction lawyers are well known for being able to discuss little else, these sessions can be excruciating in their content and leave the arbitrator wishing they had used the break to do the crossword or check their voicemail. After the hearing, arbitrators are required to retire, in splendid isolation, to write their awards.
Little wonder, then, that they leap at the opportunity to attend functions thrown by the Chartered Institute of Arbitrators, the Worshipful Company of Arbitrators and the Society of Construction Arbitrators, to name but a few. The Society of Construction Arbitrators has demonstrated that it is more than just a dining club with its launch of the new 100-Day Arbitration Procedure. This is designed to cater for the growing body of disputing parties who are dissatisfied with adjudication, or for use in cases which are unsuitable for the 28 day procedure. It is intended to combine the main advantage of adjudication - that is, rapid dispute resolution - with the many advantages of arbitration - such as final determination of a dispute by a suitably experienced tribunal, using the flexible powers of the 1996 Arbitration Act.
The 100-day procedure requires the arbitrator to make an award within 100 days. The main distinction from adjudication is the date from when the time runs. In adjudication, the 28-day clock starts with the date of the referral notice. With the increasing trend of referring ever more complex disputes to adjudication, both the responding party and the adjudicator can be presented with a vast claim prepared over many months and asked to respond to it, or decide it, in a matter of days. Although it is within the adjudicator's power to prevail upon the referring party to extend the timetable, few do, preferring instead simply to get on with it. The respondent is thus doubly disadvantaged, by being required to prepare a defence to a complex claim in a ridiculously short time for consideration by an adjudicator who is unlikely to be up to speed.
It is this very unlevel playing field which the 100-day procedure seeks to redress by starting the clock only after the parties have exchanged their respective statements of case. This is a process that defines the issues for decision and which is often unduly rushed in adjudication. Once it is done, the parties can proceed, safe in the knowledge that the real issues in their dispute will be decided promptly, fully and finally.
For more information see www. arbitrators-society.