Using ANBs is the best option for nominating adjudicators

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Using ANBs is the best option for nominating adjudicators

August, 2018
JR Hartley

Adjudication is the construction sector’s dispute resolution method of choice for several reasons. It is: 

  • Quick. An adjudicator must normally issue a decision within 28 days of being seized with the dispute. 
  • Comparatively simple. The procedure from start to finish is prescribed in law in straightforward and plain language. 
  • Cost-effective. The relative speed and simplicity of the process renders it significantly cheaper than lengthy litigation or arbitration. 
  • Private. Unlike the courts, what happens in adjudication tends to remain confidential between the parties, and decisions are not generally published. 

Adjudication also enables parties to have their dispute decided by someone who is highly qualified and has significant experience in the construction sector. In fact, the entire success of adjudication over the past two decades and more has been underpinned by the excellence of the people who act as adjudicators. And most, if not all, of the best adjudicators are on one or more of the panels managed by independent Adjudicator Nominating Bodies (ANBs).

The person who actually adjudicates a dispute is someone agreed by the parties or, as often happens, someone nominated by an ANB. The process by which different ANB’s nominate adjudicators vary. Most utilise a system whereby adjudicators are placed on a panel, and only those on the ANB’s panel will nominated. 

The rationale is that an ANB will have recruited, trained and most likely assessed/interviewed the adjudicators on its panel. It will therefore know and have confidence that the adjudicators it appoints are qualified and equipped to discharge the role. 

ANBs help parties by taking on the burden of checking that adjudicators are independent, have the correct skills set for the job in hand and can commit the necessary time to carry out the adjudication. 

An ANB will usually provide background services to ensure adjudicators maintain standards. They will require adjudicators to submit to regular, adjudication specific, CPD and undertake reassessments from time to time. ANBs also provide technical advisory services on process and procedure, which is particularly helpful for inexperienced parties. 

Parties to disputes will often desire adjudicators with essential skills and knowledge of the relevant subject matter, which enables them to understand and deal with technical questions pertinent to the issues in dispute. So, whilst anyone can become a construction adjudicator, the reality is that most adjudicators appointed by ANBs, are qualified construction professionals drawn from surveying, legal, architectural or engineering backgrounds. 

Adjudicators need to be trained and qualified specifically in discharging the role of adjudicator. An appropriate understanding of law and procedure, and the ability to practically apply oneself as an adjudicator are imperatives. This is because acting as an adjudicator is a role, which results in binding decisions that can have significant consequences for individuals and businesses caught up in disputes. 

It follows that, a key step on the way to becoming a construction adjudicator is the need to undertake a viable training course. The level of training and assessment aspiring adjudicators are required to undertake varies from ANB to ANB. Some panels demand minimal training, e.g. 1 or 2 days in law, practice and procedure. Some ANBs, particularly those which appoint the larger numbers of adjudicators, set the bar much higher. 

The commitment, in terms of time and money, to getting qualified and onto an ANB panel varies, but it can be significant. Possibly the toughest ANB panel to get on is the RICS panel. Aspiring adjudicators are currently required to complete an 18-month diploma in adjudication. This is a combined distance learning and face-to-face tutorial programme, which covers contract, tort, evidence and law applicable to adjudication practice and procedure, and decision writing.

At the same time, getting on to the RICS or other ANB panel, even when qualified with a diploma, can never be guaranteed. A question arises, therefore, as to why someone would want to train and qualify as an adjudicator, when there is so much uncertainty of opportunity?

Parties are not obliged to use ANBs. They are free to choose who their adjudicator will be, either by naming them in their contracts or agreeing their identity after a dispute has arisen. In both cases, parties want to be confident that their adjudicator is properly qualified and skilled. Using an ANB adjudicator signals that someone is trained and equipped to discharge the role of adjudicator, and that they are monitored to ensure they keep up to speed. ANB’s give parties confidence that adjudicators possess top quality credentials that will enable them to discharge the role effectively.   

The continuing popularity of adjudication runs in parallel with increasing numbers of professionals who are keen to be adjudicators, and on ANB panels.

It is a role that requires specialist knowledge and practical ability, which is why training and qualifications are so important. Being trained and qualified is only part of the story. Just like passing a driving test, it is experience that hones skills acquired through training and makes a person a genuinely competent adjudicator. Credible qualifications provide professionals with opportunities to market themselves and gain experience in adjudication, as adjudicator and as party representative. 

Adjudication as a method for determining construction disputes remains hugely popular. ANBs have been operating since adjudication came into being in May 1998. The organisations which provide nomination services in the UK are now vastly experienced and capable. Over the past five years the overall numbers of adjudicators appointed by ANBs has increased year on year, and current indications are that the upward trend is continuing. Using ANBs is an immensely reliable option for parties. 

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