The new world order

Before the world began, a group of parliamentarians and a few hangers-on were busy debating how the world would be run when it started. I was a hanger-on. The Construction Act then began on 1 May 1998.

Some of us had tracked the act's progress in Westminster since 1995 and we began training potential adjudicators in 1996. But I think I got the training wrong, because back in those days we used a model that is different from the one adjudicators are being asked to use now. Today's model is better – but it is not what the parliamentarians envisaged.

Let me explain. The model in use now is a dispute resolution model. It is akin to arbitration. Indeed, a judge very familiar with the whole process said recently: "That which is applicable in arbitration is basically applicable in adjudication." He went on: "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 considerable weight that goes beyond the legal requirement that the decision has, for the time being, to be observed."

The judge is bang on: the industry is using adjudication as a dispute resolution model. But, back when the world began, this was not how it was envisaged it would be used. Indeed, in July 1996, parliament decided to remove the word "resolution" from the bill. The draft Construction Act had said: "A party to a contract has the right to refer a dispute under the contract for resolution by an adjudicator." But the House of Lords and Commons decided the word "resolution" was "insufficiently understood by the industry". So, the draft act was changed to read "right to refer a dispute under the contract for adjudication".

But if this was not arbitration in short pants, what was it? The model that came to my mind was that the adjudicator was, in truth, a certifier in long pants. The industry was used to architects deciding on extensions of time, certificates of completion, non-completion, snagging and so on. So, if a contractor was upset by the architect, along would come the new-style adjudicator, take a shufty at what this architect fellow had certified and trump what he had decided.

The same would happen if the project QS's valuation figures were thought to be wrong. The adjudicator would climb into the previous QS's boots and trump him by an independent, impartial view. Same with an engineer's decision under ICE/NEC contracts – the adjudicator could decide the engineer was too big for his boots.

The 1998 model was asking the adjudicator to handle a job in the same way as the project’s architect or QS. This is not one jot like arbitration

That model was asking the 1998 adjudicator to handle a job in the same the way as the project's architect, QS or engineer but as a complete outsider. This is not one jot like arbitration.

Arbitration in the UK is based on the English adversarial system. Not for one moment did an architect, QS or engineer make decisions, even important ones, based on a process or procedure recognisable as adversarial. At best, the inquiry of an architect or engineer would be to flick through a contract, chat to his colleagues and dig into his memory. Often the approach was unsystematic and untidy. Some would sift, upturn and worry the problem, some would ask awkward questions to fathom the truth. None talked about natural justice, human rights or procedural fairness, or worried about doing a bit of mediating. A good architect was every bit as likely to try to knock heads together.

In short, there were no formalities or red tape. And adjudicators were trained on that basis – to do the job like a fair-minded administrator. After all, if you didn't like the decision of the bloke in long pants, you could still use arbitration or litigation as nothing had changed in those two camps. All that had happened was the industry had re-invented the certification process and the engineer's decision. It was the next best thing to sliced bread: the industry had an impartial referee for its building issues, and it worked.