We shall not be moved

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A second look at the Guidance for Adjudicators focuses on how not to be intimidated – either by the parties or by the huge piles of paper they throw at you

Last week I told you about the new Guidance for Adjudicators and promised to come back to some more of its topics.

Intimidatory tactics are talked about. It goes on in arbitration too. It happens in two ways.

The first is during an adjudication or arbitration. Heavy-handed objections to jurisdiction, over-the-top legal submissions or threats not to take part arise. The second is a complaint about the adjudicator to his or her professional institute.

This sort of bullying could undermine the independence of some adjudicators, swaying them to see things the bully's way. Or it could drive some adjudicators to do the bully down. Who knows? Either way, it is unacceptable. Then there are those who report the adjudicator to their institute asking for "stern action". Some institutes then discipline their member through a humiliating process that can play on the mind of other adjudicators. It is possible that adjudicators and arbitrators become scared stiff and unwittingly tinker with decisions. The guidance note gives help on this. Best of all, it says to adjudicators: "Don't lose your temper."

Unmanageable documentation is another heading in the guidance. First is the advice to adjudicators when numerous lever arch files come in as the "referral", making it difficult for the other party to respond, and difficult for the adjudicator to take on board, in the time, what all the files say. The guide is a bit woolly here, and I don't blame it. It gives comfort to adjudicators by saying that they need not take on all information submitted to them. Yes, but what to leave alone? "The responsibility for judging what is or is not relevant, lies with the adjudicator." That's the best that can be said.

A party can’t come to adjudication and create the agenda for decisions during the adjudication. The agenda must be created beforehand

More important in my view is this advice: "Consider whether the documentation properly relates to the dispute being adjudicated or to another issue (which may or may not be a dispute between the parties). The introduction of matters that have not been canvassed by the referring party at or before the referral may point to there not yet being a dispute within your jurisdiction". This is important. Look, a party can't come to adjudication and create the agenda for decisions during the adjudication. The agenda must be created beforehand. That's what is meant when we talk of matters being canvassed. So, long before the adjudicator wallah is called up, there is a period of "position taking". If I am dissatisfied with your performance under the contract, I will write to you expressing my opinion. I call this a "position statement". If you have got your brains together, you will reply in detail with your position. Call that a "position statement" too. You can bet your life you will include new points, arguments and so on. Bet your life again that I will reply. This canvassing of views very often leads, by the way, to settlement. If not, there comes a point when it's time to stop, time to call for the adjudicator. The "referral" of all the canvassed views is the bagging-up of the dispute. You can't have an adjudication unless a dispute has materialised and it is only the material dispute that is bagged-up. So on day one of 28 the adjudicator has got the arguing "done and dusted". The 28 days belongs to the adjudicator. Have you got the idea? And do you see how these "position statements" before adjudication stop the ambush by either side? And do you see the basic fairness in all of this? None of this "positioning" need be formal; it can all be done by letter writing between the parties. But do cover all the points and do get your evidence together and do point to where in the contract you say you have a right to this or that. And if all this approach is a surprise to you, let me tell you that a string of High Court cases have given huge nudges that this is the way to do it.

The guidance is silent on whether the adjudicator should search for himself to see if he has got a real live dispute … in other words, jurisdiction. In my view, he should not. It is only his job to inquire if one party raises the point and not otherwise.

Giving reasons for decisions is the final piece of guidance. The "scheme" requires adjudicators to give reasons if asked. Some parties ask late in the 28 days. The guidance suggests setting a date at the outset by which any request to give reasons must be made.