In Phaethon and the Sun Chariot, the inexperienced Phaethon set off to drive the chariot of the sun through the heavens. Unable to control the horses, he came too close to the earth and began to scorch it. In punishment, Zeus hurled a thunderbolt at Phaethon. It might be said that this cautionary tale relates to the responsibility in the hands of the adjudicator – a ‘frolic’ may prove fatal.

It is no mean feat to be appointed on an ANB. Many seek, few find – the barriers to entry are insurmountable to the majority who set off on this journey. It is relatively straightforward to become a qualified adjudicator but that is barely the first step. For example, one of the criteria for inclusion on the RICS President’s Panel is 10 years of post-qualification professional experience. Then there is the so-called ‘chicken and egg’ dilemma where any prospective panel requires you have experience adjudicating. Lo and behold, you meet all the rigorous criteria, the panels recruiting will inevitably be on hold.

The ‘fun’ starts for the lucky few who make it onto a panel and get their first appointment. In a profession like no other, whereby the adjudicator is thrust into the pressure cooker in a race against time, she must overcome intimidatory tactics and deliver a decision. Thereafter, the adjudicator must lie in wait, praying she did not err in any ‘material’ way, in fear that the parties may complain to the ANB or, more terrifyingly, to the Courts.

Dare it be said, those still reading may have the resolve to become a successful adjudicator. This article intends to explore what it takes – the prerequisites of an adjudicator – identifying a checklist of characteristics a candidate must possess to make their ambition a reality.

Coulson’s Essential Characteristics

Lord Justice Coulson identified three ‘essential characteristics’ of an adjudicator along with seven ‘Golden Rules’ which can be summarised as follows:

1) The ability to treat the parties fairly and courteously. Section 63 of the Constitutional Reform Act 2005 states that first and foremost a Judge must be of good character. This dictum might be considered the bedrock for any candidate with aspirations of acting as adjudicator. An adjudicator must always have in mind whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. This is particularly important where one party is unrepresented or where it is necessary to disclose any potential conflict of interest. Furthermore, the RICS advise against being critical of the parties’ actions, unless it is necessary to do so to explain a decision. Criticism or gratuitous advice may cause the parties to resist accepting the decision.

2) Possess excellent time management qualities to enable a fair hearing with respect to the statutory time constraints. An adjudicator must plan the procedure effectively by giving early directions to the parties and have a schedule to complete the important parts of the decision in the last 7 days. Failure to achieve this will likely be terminal if an unsatisfied party challenges enforcement.

3) Have the ability to grasp the essential issues quickly. Adjudicators must be able to filter unimportant flotsam and jetsam. The parties may serve up red herrings and sometimes they themselves may not know what issues are relevant to the dispute. In any event, once the adjudicator has identified the key issues, she must ensure to exhaust her jurisdiction while not exceeding it.

4) Grasp the nettle and be bold. The unique nature of adjudication, designed to improve the cashflow issue and with limited time in comparison to other dispute resolution forums, subjugates the need for a carefully considered and correct answer to the need for an expeditious answer. It is not always possible to hear all argument on substantive matters, preliminary issues and challenges to jurisdiction.

5) Address jurisdiction issues early and clearly. An adjudicator should not abdicate the responsibility for providing an answer, even if it is not binding and she must avoid being too jaundiced. The RICS Guidance Note advises that where there is uncertainty about the challenge, an adjudicator should give preference to proceeding.

6) Provide a clear result and do not make silly mistakes. It is key that the decision is clear and accurate and that the redress sought is as intended. With the time constraint to provide an often-lengthy decision dealing with many complex issues, this can be challenging – albeit there is some scope to correct slips.

At this stage, it will be useful to distinguish between the two different adjudicator backgrounds: the construction professional and the legal professional. As much as the advice of Coulson LJ is most insightful, it might be submitted that he had a legal professional in mind, with a proven track record, considering a transition into adjudication and not a construction professional – like the author – considering the same. The qualities of a construction professional such as team skills, communication, negotiation, alongside all the technical skills are of diminishing value in the adjudication arena. I would also advance that the essential characteristics that Coulson LJ identified are those required to produce an enforceable decision and those characteristics one must possess to stand the test of time encompass more general traits.

Aspiring Adjudicator Checklist

With the above in mind, the following considers, from the point of view of a construction professional, the essential characteristics that might be a useful checklist to the next generation of adjudicators.

1) Professionalism – As stated in CIArb literature, a key skill an adjudicator must have is professionalism. An adjudicator must continually demonstrate high ethical and professional standards and conduct the role with unimpeachable integrity. An adjudicator should remain impartial and uphold the rules of the dispute resolution process throughout. In other words, as Coulson inferred in his rules, sharpness of mind in relation to natural justice and jurisdictional issues. Additionally, an adjudicator must be a conscientious and well-organised individual.

2) Highly Driven & Durable – There is a school of thought in recruitment that the best athlete is preferable to the best resume. In other words, performance is correlated to attitude. Those who reach the lofty heights in any field have a burning desire that refuses to be extinguished. The author considers this drive an essential characteristic in adjudication, whereby momentarily removing one’s nose from the grindstone could not only prove fatal to enforceability but also to an adjudicator’s standing.

3) Flexible – the adjudicator Matt Malloy, in giving an outline of his daily life, suggested that the role is catered for a certain type of individual who does not demand the structure and routine of normal employment. He also suggests that being an adjudicator can be a 24/7 job. As much as that is so, it should be noted that accepting appointments is discretionary so the 24/7 life can be switched off and recharged.

4) Academic – an adjudicator might be a person with an affinity to academic life. Whereas a construction professional may spend the most part forecasting, reporting or forensically analysing data, an adjudicator will need to excel in verbal reasoning and reading judgments and identifying ratio decidendi will be one’s daily bread. It is suggested to any construction professional questioning their aptitude in this domain might wish to take the online Law National Aptitude Test.

5) Experienced – With the overarching duty to produce an enforceable decision it is important to have expertise in the law of adjudication. However, as a construction professional you have a unique technical skillset whereby you might have a greater understanding of the substantive issues in relation to quantum, delay and contract machinery. It might be said that this type of experience is undervalued in adjudication circles and without high-quality adjudicator’s decisions on these substantive issues, the parties might be prefer to refer their disputes to another forum.

6) Independent – As a sole decision maker life can be lonely at times. This is one characteristic that resonates with many adjudicators when the reality sets in that the social aspect of life as a construction professional is a distant memory. On the other hand, if you thrive in isolation and do not desire the adulation of the crowd, then ‘yours might be the Earth and everything in it’.

Conclusion

From the author’s personal journey and indeed the research to write this blog, it became evident that there is a lacuna of insightful anecdotes to educate candidates. The writings of LJ Coulson are useful, and this chapter has attempted to supplement those with some more general characteristics. Henceforth it would be beneficial to have first person accounts from some of the distinguished early practitioners.

To some degree, hopefully this chapter has communicated the realities of the profession without discouraging the next generation. Robert Browning once said that ‘one’s reach should exceed one’s grasp’ and that might be an essential mindset for one undertaking the transition to adjudicator.

P.G. Wodehouse once said, “The man who can go into a patch of rough alone, with the knowledge that only God is watching him, and play his ball where it lies, is the man who will serve you faithfully and well“. With or without God by your side, above all else, that integrity is the ‘conditio sine qua non’.