It's a side issue

In court these days it never comes as a surprise when the judge leans forward to gently probe the quarrelling parties about their efforts to embrace mediation. In other words, go and sort out your dispute elsewhere. Mediation is a flop when one of the parties is bullied into mediating. First there has to be a willingness to reach a compromise, as mediation is non-binding. But the appetite of our courts to find attractive routes to solving a quarrel is real and realistic. Many disputants can't afford litigation – and the public purse can't afford it either.

My guess is that in a wee while judges will be probing parties not only about mediation, but about adjudication as an alternative to mediation. In other words, go and sort out your dispute with a 28-day super-quick, super-cheap, pro-tem binding decision. Judges are surprised and impressed by the success of "new" adjudication and will, I believe, soon begin to coax parties to go for this binding process. But, and this is a big but, the judges will first want to knock adjudication into a shape that is, perhaps, more "judicial".

The judge in Balfour Beatty Construction vs Lambeth (No. 101 in our series) made an interesting aside about the success of adjudication. "It is now clear that the construction industry regards adjudication not simply as a staging post towards the final resolution of the dispute in arbitration or litigation, but as having in itself considerable weight and impact that in practice goes beyond the legal requirements that the decision has for the time being to be observed." He then talked about the confidence that adjudication has apparently earned. Put another way, this four-year-old idea has been taken a lot more seriously by industry than was probably intended by parliament. Adjudicators have not regarded the machinery as a knock-about process giving a rough and ready temporary answer. Instead, they have worked their butt off to get an answer in the 28 days. Whether the answer was right or wrong, isn't the point I want to make. The point is that the adjudicators have used their technical know-how and industry knowledge, got their wellies on and got their hands dirty to try to reach a decision. So, they have earned the court's respect.

And now let me tell you what went wrong in the Balfour Beatty case. It was a late completion dispute. Lambeth took £355,000 in liquidated damages. So Balfour Beatty came to adjudication claiming umpteen weeks' extension of time and repayment of the damages. In one way, Balfour Beatty was very lucky. The appointed adjudicator was also a top expert in programme planning. Lucky, because when Balfour Beatty told its story to the adjudicator, no one seems to have been impressed. Lambeth said Balfour Beatty had produced no evidence. The adjudicator now rolled up his sleeves. He is a merry old soul, who called for his pipe, and called for his bowl, and called for his fiddlers three. He and his assistants investigated in detail, plugged in the software, and the computer produced the critical path programme. So now the adjudicator had all the evidence he needed to decide the dispute.

Fairness is needed in adjudication because if the losing side at least perceives a fair crack of the whip, it might just quit the quarrel there

He awarded 33 weeks and three days' extension of time, then ordered Lambeth to pay up £284,000 of the withheld damages.

Do you so see how hard the adjudicator worked? He "took the initiative in establishing the facts and the law" as provided for at the heart of adjudication. That's as may be, but the adjudicator is not there to pull the irons out of the fire for one party or the other. He is liable to be accused of bias if he does that. And true enough, that's what Lambeth said when it was dragged into court for enforcement proceedings. There was no actual bias, but an outsider would view all the hard work of the adjudicator as bias or unfairly helping one side. The judge agreed.