Adjudication: A red card for the bullies

Hurrah! A breakthrough. A major player in the construction disputes world, the Adjudication Society, has announced that the bullying of adjudicators is widespread and a real cause for concern. But when the society asked adjudicators about this, they all said “we can cope”. Honest? There is a golden rule or two or three when you are a referee, a dispute decider or an umpire. The first is to decide all events “without fear or favour”. Go on, keep that in mind when some clown is bossing you, hectoring, threatening - yes, this is bullying.

Come back 31 years with me. It was my very first arbitration appointment: an appointment by the Chartered Institute of Arbitrators. It, and a few that followed, went well. Then came a pair of gladiator solicitors. They were at each other’s throats, and copied me in to their robust exchanges. But one of them made a snide remark in my direction. And so it continued and the fax machine became a messenger of fear. I took advice from a very experienced arbitrator, “Oh, it goes on all the time,” he said. “Get used to it.” I didn’t. I haven’t. It’s bullying. Twelve years ago I wrote a long paper about adjudicators and arbitrators walking on cracked ice - treading carefully, molly-coddling the bully. I was on about adjudicating a dispute when frightened, yes frightened. “Runs with the territory” and “If you don’t like the heat,” said one institution. Why bully the adjudicator? Because it works, that’s why. It works particularly well when one of the parties realises they are highly likely to come second in the competition and win the booby prize. I advised a party (as counsel) recently that his intended procedural tactic would pee-off the adjudicator. “Don’t care,” said my caller, “we are on a loser - in any case if we shout and whinge, he may roll over.” The idea was an exercise in bad faith, an attempt to destroy that rule of having a referee “without fear or favour”.

The other side of the coin is that the bully may well destroy his client’s chances of coming first. Using intimidation games can cause the victim (the peed-off adjudicator) to lose his trust and confidence in party X’s representative.

Steam came out of the representative’s nostrils. There was vehement rejection of any intention to bully. And I believed him. Some folk put winning first, win above all else. They fall into bullying unwittingly

In a recent case of mine I called a meeting because pink team had begun writing strident emails “at me”. At the meeting I started by explaining to the Pink team that its emails were at lowest, bossy and didactic and at highest could be construed as bullying the adjudicator. I then advised the Orange team that I was paying little attention to the style or observations because they were bad points and that any outcome to the adjudication was not as a result of the Pink team’s behaviour. I then told the Pink team’s lawyer that it was not my intention to penalise its client (the party) for the improper behaviour of its representative. Steam came out of the representative’s nostrils. There was vehement rejection of any intention to bully. Moreover, I believed the representative. Some folk put winning first, win above all else. They are self-blinded by the enthusiasm and fall into bullying unwittingly. Getting these people to come to the adjudicator’s table is very useful. But time and time again they go away and fall back into being a keyboard gladiator.

More sinister still is using the adjudicator as a battering ram. Pink team wheels a shopping trolley; it collects bits and bobs of errors, omissions of the adjudicator on the way to the end award. The checkout for the trolley is at post-award, pre-enforcement, negotiating stage. Look, look, shouts Pink at Orange; this damn fool adjudicator has messed up here and here and here. So better we settle, eh? My guess is that the bullying of the adjudicator is often aimed at events after the adjudication itself is all done.

It’s part of the game. So, what’s to be done now that the Adjudication Society recognises the bullying problem?

All trouser pockets of adjudicators are to be designed to carry two yellow and one red card. Yes, it’s the same idea as a football match. One warning, two infringements and the bully take an early bath. Then, any criticism, yes any, of the adjudicator referee attracts the same fine as the FA levies on football managers for lambasting the referee. It is £8,000. Then we compile a Code of Representatives’ behaviour in dispute resolution, an Ethical Code of Conduct, publishing standards to be achieved and circumstances for the yellow card. The heart of all this is that the tribunal is entitled to repose its trust and confidence in the representative. The first duty of the representative is not, repeat not, to the representative’s client; it is to the tribunal. It is crucial that the person deciding disputes is able to do so “without fear or favour”. It is a mistake to think all dispute deciders are unaffected by the bully, even if they think they are.

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple