The quiet Americans

Hello from Budapest. I'm here at the behest of the Dispute Resolution Board Foundation, the USA's top organisation for construction industry disputes sorting. And here in Hungary your European Union pennies are helping to repair big holes in roads, railroads and towns. Next door, Romania is poised to join the EU in January and snaffle £20bn for their infrastructure refurb. All good stuff isn't it? By the way, the chief of the Romanian Civil Engineering Institute tells me they are training 35 adjudicators to handle the odd dispute in their big dig.

The DRBF has acquired a lot of experience over the past 10 years, after it introduced the dispute board idea to megaprojects in the USA. And it is willing to share the lessons with anyone, anywhere. Hence this central European chat. Bear in mind that the DRBF's initiative in setting up dispute boards in the USA came because nobody had the political will to give a statutory right to those in commercial construction to call up an adjudicator from a nominating body.

As in Britain, the adjudicator's decision is binding until finally decided in litigation or arbitration. In the USA it was used for projects such as the Boston Big Dig, which went $4bn (£2.1bn) over budget. There the DRBF appointed a visiting board of five people, mainly civil engineers. But they were not there to make a binding decision; they were there to analyse each dispute and make a recommendation. That's different to adjudicating.

In truth, here in Budapest listening to our American friends, I can be frank about two things at least. I don't think they've realised how successful our adjudication system is. In Britain, the recommendation idea would not last any longer than it takes to utter a rude word. I hope that the European folk at this conference will use dispute boards to adjudicate, not merely to recommend. When I suggested to the chief of the Romanian Civil Engineering Institute that he train his 35 adjudicators to adjudicate he gave me a blank look.

Come to think of it, the word "adjudication" in the UK encourages some people not to adjudicate at all. It still fascinates me to read an award, especially by a civil engineer adjudicator, that is more of an opinion. A sort of "this is what I think will be best all round". True, nowadays there is more willingness to adjudicate but the enthusiasm in the UK, especially from the engineers in construction, is to deliver "wise counsel".

In a talk given this morning by an American he was quite convinced that a dispute board's job was to explain things about the dispute, not in law but "in equity". I heard some bottoms wriggle and a man in front of me uttered a rude word. But the dispute board makes recommendations; it does not impose a binding decision. Contrast that with the UK, Australia and New Zealand, and soon Singapore and Malaysia. There the judicial act of adjudication can be scrutinised by the court and enforced forthwith.

An American speaking in the morning was quite convinced that a dispute board’s job was to explain things about the dispute not in law but ‘in equity’

More bottom wriggling went on when another American speaker warned that when a dispute came to the board, the role of the lawyers should be limited. This time a man behind me uttered a rude word. The speaker went on to say that the lawyers should be permitted to "observe", to "assist a party" but not to make presentations or cross-examine witnesses at hearings.

A Canadian observed though that the lawyers should come to the party but sit quietly on a chair at the side of the room. But remember, the American DRB is not a judicial process. These engineers are there to bring ideas, remedies and suggestions; to get around the problem and get shot of the dispute at least between the employer and the contractor (but not the subcontractors). Remember, a "recommendation" may include paying a lump of money to the contractor without there being any substantive evidence to support it.

"To recommend", especially from a respected team of engineers is likely in the USA to be accepted. That won't work in most other parts of the world. Believe me. The engineer in a dispute in the UK makes a great and effective dispute decider. He expresses no opinion, he is not a wise old codger, he is a boring adjudicator who simply asks what are the issues and sub-issues and what do the players argue on each one and which do I find more convincing. Referees do not have to be wise. And of those 35 Romanian trainee adjudicators, first train them in what it is to adjudicate. Teach them to referee.

Next stop Bratislava.